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Bench Memos

NRO’s home for judicial news and analysis.

Open Minds



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Lots of interesting information in Mike Allen’s Sunday Post analysis. The key line: “Democrats signaled that whoever the nominee is, their three likely lines of attack will be to assert the White House did not consult them sufficiently, then paint the nominee as ideologically extreme and finally assert that the Senate had not received sufficient documents about the candidate.” So much for entering the debate with an open mind.

More on Gonzales and Recusal



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Today’s Washington Post article on three major cases on the Supreme Court’s docket next term provides more powerful evidence why those of us who admire Attorney General Gonzales should recognize that his recusal obligations as a Supreme Court justice would make him a terrible pick for the Court.

As I have previously discussed, the statutory recusal standards put in place in 1974 make it likely that Gonzales would have to recuse himself from virtually every case of importance to the administration, with devastating consequences for the administration’s legal prospects. For example, Gonzales’s recusal from the constitutional challenge to the federal partial-birth abortion act would almost surely result in the invalidation of that act (by a 4-4 affirmance of a lower-court ruling). (Ramesh Ponnuru’s article makes similar points.)

Gonzales would very likely have to recuse himself from all three major cases discussed in the Post’s article. (Recusal determinations turn on fact-sensitive inquiries, and it is possible, but I think highly unlikely, that a full understanding of the facts would alter this conclusion.)

Ayotte v. Planned Parenthood presents the constitutionality of New Hampshire’s statute providing for parental notification when minors have abortions. The questions presented include the standard of review of facial challenges to statutes regulating abortion. The United States can be expected to file an amicus brief in this case, precisely because the standard-of-review question directly affects litigation involving the federal partial-birth abortion cases. The attorney general would ordinarily take part in a decision like this. Recusal strike one.

Gonzales v. Oregon presents the question whether Oregon’s doctor-assisted-suicide law runs afoul of the federal Controlled Substances Act. The petitioner is the attorney general himself. Although I don’t think that being a named party in one’s official capacity in litigation necessarily triggers a recusal obligation, it is very likely, given the important and difficult issues that this case presents, that the attorney general has personally participated in decisions involving the litigation. Recusal strike two.

Rumsfeld v. FAIR presents the constitutionality of the Solomon Amendment, which requires universities, as a condition of their receipt of federal funding, to give military recruiters equal access. A number of schools, protesting the military’s policies on homosexual conduct, have challenged the law. It would be very surprising if Gonzales, both as White House Counsel and attorney general, had not personally participated in decisions about this case. Recusal strike three.

Given the unique and invaluable role that Gonzales has played and continues to play as the president’s top lawyer, there will undoubtedly be many other cases of great interest to the administration, both in the coming Supreme Court term and in later years, in which a Justice Gonzales would have to recuse himself. In light of these recusal obligations, it would seem to me that the only sensible conclusion that reasonable minds could reach is that it would be sheer folly for the president to nominate Gonzales to the O’Connor vacancy (or any other imminent vacancy).

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Error by Consensus



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From our editorial on SCOTUS up today:

The Court has helped bring into being a significant degree of polarization about itself — so much that it is not at all clear that any candidate could generate a consensus. What the president should instead seek is a candidate who is committed to the rule of law. The rule of law entails predictable, because rule-bound, judicial decisions. It entails respect for the intentions of the sovereign people who ratified the Constitution and who ratified the amendments to it: If what they ratified needs to be changed, change should occur through a lawful process of amendment rather than judicial revision. It entails some respect for precedent, but does not confuse the stability of Court-made “constitutional law” with fidelity to the Constitution.

Beat on the Extreme Right, Bush! Beat ‘Em Down!



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In his Q&A with USA Today, could the president really have answered these questions too much differently than he did, given the questions? USA Today got the answers they wanted, I’m sure. I’m not as worried about what he said (indicator-wise) as I would be if I hadn’t read the questions:

Q: What do you make of the tone of the dialogue already and in particular the attacks on Attorney General Alberto Gonzales, who’s considered a possible nominee?

A: My call to the senators who will be leading the debate on either side is to help elevate this rhetoric so that the country will take a prideful look at the process, recognize there will be differences of opinion but that we can step back after it’s over and say, “That’s the way we ought to conduct a debate on something as serious as a Supreme Court nominee.”

Q: Do you think the attacks on Gonzales are out of line?

A: Al Gonzales is a great friend of mine. I’m the kind of person, when a friend gets attacked, I don’t like it. We’re lucky to have him as the attorney general, and I’m lucky to have him as a friend.

You Gotta Love “Our Guys”



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Specter reminding us of his Borking, Hatch embracing Gonzales…(same article in the Globe).

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Dems Won’t Rule Out Filibuster



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Just More Liberal Reax



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GayPatriot looks at some gay groups’ reactions to the O’Connor resignation (“sad day.”)

Ah, Yes…Specter…Specter and the Marbury Myth



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Senator Arlen Specter will preside, for the first time in his long career, over the hearings for a Supreme Court nominee. I expect he will continue a pattern he has followed for a very long time as a rank-and-file member of the Judiciary Committee. Specter has pursued one subject with every nominee since the Rehnquist-Scalia hearings of 1986: the supremacy of the judiciary over all other institutional competitors as the final, authoritative interpreter of the Constitution, whose word is binding on all others.

Specter’s a senator, so he’s against such a notion, right? He thinks the legislative branch at least enjoys some parity with the Court as a constitutional interpreter, right? Wrong. Specter is Washington’s foremost advocate of judicial supremacy, and he has pressed every nominee for the last two decades to embrace a view of the Constitution in which the Congress of the United States is a subordinate agency, subject to the Court’s binding authority on all questions of its–the Congress’s–own power.

The last prominent public official in our national government to challenge this view was Attorney General Edwin Meese, who argued in 1985 that the rulings of the Supreme Court are not themselves the same thing as the Constitution itself. For stating this once-commonsense view he was roasted and denounced from coast to coast by newspaper editorialists, the law-school establishment, and the left in general. Specter too, it appears, was shocked and appalled to hear an attorney general restate the views of Abraham Lincoln.

Ever since then, Specter has dedicated himself with uncommon diligence to demanding of future Supreme Court justices that they declare themselves in favor of the proposition that the Congress is inferior to the Court when it comes to construing the Constitution. This puts Specter–now with the authority to speak as chairman of Judiciary–in the strange position of denigrating his own institution while unduly elevating the one whose future officeholders he is interviewing. Can it be any surprise that the nominees generally acquiesce in the view that, once sworn in, they will be the most powerful constitutional authorities in American politics?

Here is a sampling from this Spectral line of questioning over the years:
*To Robert Bork, 1987: “[U]nless there is an appeal and a change in the Court’s decision, . . . such a decision does establish a supreme law of the land that is binding on all persons and parts of the Government.”
*To Anthony Kennedy, 1987: “[A]s long as the Court has said what the Court concludes the Constitution means, then I think it is critical that there be an acceptance that that is the final word.”
*To David Souter, 1990: Marbury v. Madison is “the 1803 case where it was decided by the Supreme Court that the Supreme Court had the last word on what the Constitution meant.”
*To Clarence Thomas, 1991: “[T]he Supreme Court has the last word, no doubt in your mind about that.”
*To Ruth Bader Ginsburg, 1993: “The decision in Marbury v. Madison established the supremacy of the Supreme Court to decide constitutionality of issues, and there are some up to the moment who dispute that.”
*To Stephen Breyer, 1994: “We know the courts are supreme to both the Congress and the president because the court told us so in Marbury v. Madison. When the Constitution was formed, Congress was number one, the president was number two in the second Article, courts didn’t come up until Article Three, but all that was changed. It was renumbered in Marbury v. Madison.”
Probably no senator has ever been so slavishly devoted to the historical falsehood that Marbury v. Madison is the fount of judicial supremacy. In fact that anti-constitutional doctrine is entirely a fabrication of the last century or so, as some of the best recent scholarship has shown.

But what is so curious about Specter’s position is that a senator, of all people, should be so dedicated to an idea so inimical to republicanism and (most to the point, one would think) to the independence and integrity of the legislative power of which he holds a share. It is a shocking form of surrender to the tyranny of unaccountable judges–or it should be, if we are still capable of being shocked–and it is worse coming from someone in a position to oppose such tyranny, whose own institutional interest lies in doing so.

Yet another reason to regret the failure of nerve of the Republican Party when it briefly considered denying Specter the chairmanship after last fall’s election.

Specter



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When asked on NBC’s Meet the Press whether he thought it appropriate to ask a nominee if he would uphold Roe v. Wade, Arlen Specter said: “I wouldn’t say, ‘Are you going to uphold Roe?’ But I would ask a nominee . . . ‘When you have a decision which has been in effect for decades, and people have come to rely upon it, what kind of circumstances, how extraordinary must they be’ ” to try to overturn it?

Specter, an outspoken advocate of abortion on demand, obviously believes precedent should be given a great deal of weight. But I assume he would have found Plessy v. Ferguson a bad case, despite precedent, as well as Dred Scott, Korematsu and scores of other decisions.

Appearing on CNN, Specter viciously attacked Bob Bork saying, in part: “I’ve been criticized a lot for questioning Judge Bork in one session for an hour and a half.” “If his ‘original intent’ stood, we’d still be segregating the United States Senate with African-Americans on one side and Caucasians on the other side.” Bork, who appeared on the network later in the day, said that he supported Brown v. Board of Education.

It is amazing just how intellectually dishonest (or is it ignorant) the chairman of the Senate Judiciary Committee is on these matters.

Writing for the DISSENT in Dred Scott, Justice Curtis said: “When a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we have the government of individual men, who for the time being have power to declare what the Constitution is according to their own views of what it ought to mean…”

Curtis sounds a lot like Bork and other originalists, doesn’t he? There is NOTHING in the Constitution that endorses or establishes slavery or segregation. Chief Justice Roger Taney was, indeed, a judicial activist. In striking down the Missouri Compromise, he held that slaves were property, among other things. And despite the clear wording of the Fourteenth Amendment, the Plessy Court established the doctrine of separate but equal. Even in Brown, the Court could not bring itself to overturn Plessy on Fourteenth Amendment grounds, instead relying on social sciences and so forth.

I’ve bitten off more than can be chewed here, but I felt Specter’s outrageous statements and attack on Bork needed to be answered.

The Other Justice O’Connor



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Charles Lane’s article in today’s Washington Post highlights the fact that Justice Kennedy, not Justice O’Connor, has become the real swing vote on the Court:

Kennedy joined with the court’s liberals to abolish the death penalty for juvenile offenders, to give local governments a green light to take private property for economic development and to endorse a broad theory of federal regulatory power that denied states the right to override a federal law against homegrown medical marijuana.

O’Connor actually found herself in dissent in most of the court’s big cases last term, voting to uphold the juvenile death penalty, to strike down Texas’s display of the Ten Commandments, to forbid takings of private property for economic development and to uphold California’s right to pass a medical marijuana law.

Kennedy’s leftward shift (again, allowing for the inadequacy of political labels to describe judging) means that O’Connor’s resignation will change very little: Even if she is replaced by a sound justice, Kennedy’s vote will continue to be the swing vote.

I don’t mean by this observation to suggest that it is unimportant who replaces O’Connor—I think it’s imperative to find a strong replacement—but rather to highlight that building a Court that will be faithful to the Constitution and that will respect the powers of citizens to govern their own communities is a long-term project.

RE: Sunstein



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The Left just loves to create new words to project their views on conservatives. “Frankfurterians” and “Thomisticians”? How absurd. In my view, Frankfurter’s judicial philosophy doesn’t lend itself to a single-word label. Thomas is, on the other hand, an originalist, or as close as one is likely to ever be one. As for the Court striking down this legislation or that legislation, Sunstein unwittingly (presumably) appears to be an “oligarchian.” Since judicial review is not a constitutional power but one that the Court has implied from its structure (starting with Marshall), justices should, first and foremost, be careful in determining which cases to even consider. This much Marshall himself made clear. When adjudicating, the Court should show great restraint by only addressing that which is discernable from the Constitution’s text to avoid making policy (which the elected branches are fully capable of doing) and undermining the Constitution’s structure (that is, leaving it to the elected branches and the people to fill in the gaps as much as possible). That’s not to say the Court should not opine against legislation it considers in violation of the Constitution, having already embraced judicial review. And I know this drives liberals and libertarians nuts, but Congress still retains the constitutional power to limit the judiciary’s jurisidiction and make-up, among other things. Congress’s reluctance to exercise this and other legitimate powers in this regard is political not constitutional. Judicial supremacy is not mandated by either the Constitution or the concept (or exercise) of judicial review.

As an aside, I’ve always felt that if the Court had not concocted constitutional arguments for justifying virtually all forms of economic regulation (including environmental laws) over the last 70 years, the amendment option would have been more aggressively and perhaps successfully pursued by Congress. After all, it’s not as if the framers left future generations with armed revolution as the only recourse to expand (or limit) the federal government. The amendment option wasn’t intended to be essentially the dead-letter it is today. Besides, if big government is so wildly popular with the public, as Sunstein and others insist, the super-majority requirements for amending the Constitution would have been achievable. Same with abortion and the rest of the Left’s economic and cultural agenda. But, alas, these days they can’t seem to win national elections with their agenda. Hence, Sunstein the judicial “oligarchian” — which, from this day forward, I shall refer to as “Sunsteinian.”

“If he appoints an extremist, he will have a big fight on his hands.”



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That’s the word from NOW’s Kim Gandy. Of course, it doesn’t take much for her and da sistas to find an “extremist.”

O’Connor and the Left



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I appeared Friday on Ron Reagan’s MSNBC show opposite Eliot Mincberg from People for the American Way. In seeking to position himself as the picture of moderation, Eliot demonstrated just how far the far left have fallen in the battle over the Courts. He, like the other spokesmen for liberal interest groups over the last 2 days, have been lauding Justice O’Connor as the model for what a good Supreme Court Justice should be, arguing that if the Court were full of Justice O’Connors, all would be right in the world. But Justice O’Connor was hardly the water carrier for the liberals that they would have the world think. Yes, she was a solid vote for abortion rights, was a swing vote on affirmative action in education, and had been a disappointment to conservatives on various social issues of late, but at the same time, she was with the “conservative” majority in crucial decisions limiting federal power to legislate (Morrison and Lopez), upholding school vouchers (Zelman), limiting the ability to sue states in federal court (Seminole Tribe), preserving the Boy Scouts’ ability to determine its own membership and troop masters (Dale), outlawing race-based preferences in government contracts (Adarand), and, at least in some cases, protecting religious speech from government discrimination (Rosenberger). While it is fair to say that Justice O’Connor often did not decide cases on the basis of a clear, discernible principle and that she often drove conservatives nuts, she hardly deserves the place in the liberal pantheon of Bill Brennan, Thurgood Marshall and Ruth Bader Ginsburg. With NARAL and People for the American Way are holding Justice O’Connor out as the kind of jurist that they really want, it would seem that either a) this battle is really all about abortion and nothing else for the left (even though, as Ed Whelan has properly observed, Roe would not be affected by this nomination, or b) the left must be pulling their hair out behind closed doors because they have so massively lost their place at the table of American politics. If the best they think they can do is to preserve the status quo on the many issues where O’Connor joined Scalia, Rehnquist, Thomas and (at times) Kennedy, then it would seem to me that the far left has really slipped as an effective political movement.

From a Feminist Majority E-mail Saturday



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Subject Line: ” O’Connor Resigns! Abortion Rights Emergency!”

This is it! The worst has happened with the resignation of Sandra Day O’Connor. Let there be no mistake about it: Sandra Day O’Connor was the 5th vote that was saving Roe v. Wade. Abortion rights and women’s rights are on the line.

On Consultation



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Sunstein on O’Connor



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Cass Sunstein has written a brief piece on Justice O’Connor and conservatives. He deserves credit for somehow managing not to use the phrase “judicial minimalism”—if I were him, I’d have been unable to resist—but the concept is lurking in there. I think judicial minimalism is arrogance cloaked as humility, to coin a phrase. But since it’s not his focus in the article, it won’t be mine here either.

Sunstein’s aim is to divide conservatives into two camps: “Frankfurterians [who] despise Roe v. Wade, but . . . are also reluctant to use the Constitution to strike down affirmative action programs, environmental regulation, or campaign finance reform laws,” and “Thomistic conservatives [who] believe that the Supreme Court should enforce the ‘original understanding’ of the Constitution, and that radical steps are necessary to restore the Lost Constitution.” The Thomists—I think he’s referring to Clarence Thomas, not Aquinas—”are perfectly willing to strike down affirmative action programs, gun control legislation, environmental regulations, restrictions on commercial advertising, campaign finance laws, and much more.” Guess which he prefers.

If I had to choose between these two camps, I suppose I’d be a Frankfurterian, since I don’t want the courts to strike down environmental regulation, campaign-finance laws, gun regulations, restrictions on commercial advertising, etc. But I don’t think it’s necessary to choose between the camps: I think my views are perfectly compatible with originalism.

Anyway, his typology breaks down as soon as he attempts to apply it to O’Connor. She is allegedly a Frankfurterian who is now reviled by conservatives because they have become Thomists. But Sunstein himself notes that “she voted to strike down lots of affirmative action programs.” She obviously did not “despise Roe v. Wade.” She voted with Thomas on the eminent-domain and medical-marijuana cases. Nor does Sunstein make the case for O’Connor’s alleged commitment to “stability in the law.” Wouldn’t that commitment have dictated a reversal of her vote in Lawrence? And a more predictably rule-bound jurisprudence generally?

A Salute



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Why Delay a Nomination?



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Does anyone have any coherent explanation for the White House’s apparent strategy of delaying a nomination? I’m stymied by that decision, which I believe is quite detrimental to the President and his nominee. Despite checking with a number of well-plugged-in people, I can’t find anyone who can articulate a compelling rationale.

The advantages of a speedy nomination are obvious: it allows the President to make his own news and seize the initiative; it prevents the storm of leaks, trial balloons, demands, lines-in-the-sand, and interest group pressure from achieving critical mass; and it enables earlier hearings. The protracted pre-nomination periods during the two Clinton picks are generally thought to have made the President look indecisive, political, and awful.

The White House staff has been fully ready to advise the President on an appointment to replace Justice O’Connor since the spring of 2001, so it can’t be that the White House was unprepared for this. (That would be unconscionable if true.). While some period of time is needed to ensure careful deliberation, thorough consideration of the various factors affecting the choice, and interviews of a couple finalists by the President, 2-3 days should be more than sufficient. I would have expected a nomination on Monday, July 4th, or the morning of Tuesday, July 5th.

Instead, the White House has formally promised that there will be no nomination prior to July 8th, and they appear to be conditioning the press to expect an announcement even later than that — either the week of July 11th or possibly even after Labor Day.

I can only imagine that some of the old hands are drawing the wrong lessons (or over-learning the right ones) from the Bork nomination, in which the August recess was used to good advantage by opponents of the nomination. But Bork was not defeated for that reason; there were many others that played a much greater role. And the interest groups and surrogates on the right are ready this time in a way that they were not in 1987. Finally, and perhaps most importantly, the President’s Party controls the Senate by a comfortable margin. In all phases of this battle, speed would seem to favor the Administration and the nominee. Delay favors their opponents.

So why are they pursuing this strategy? What am I missing?

Possible Nominee John Cornyn



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The Washington Post tries to use NRO against him!

Uh, This Sounds Like Consultation



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More from the Washington Times:

Mr. McClellan said Mr. Bush spoke yesterday with Sen. Patrick J. Leahy of Vermont, ranking Democrat on the Senate Judiciary Committee, and committee Chairman Arlen Specter, Pennsylvania Republican. The president spoke this week about the Supreme Court with Senate Minority Leader Harry Reid of Nevada and yesterday tried unsuccessfully to reach him, the spokesman said.

He added optimistically: “I just can’t imagine that Democrats are going to want to engage in controversial tactics when it comes to a nominee for the Supreme Court.”

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