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Bench Memos

NRO’s home for judicial news and analysis.

Brit Hume



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is asking Stuart Taylor temperament kinda questions on Roberts on his show right now. I sense he’s getting the same vibe I’ve been getting the last hours or so.

More Ann Compton



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Passing on secondhand:

Compton did note that it can’t be Edith Jones because she was in Houston at
4 p.m. (but who’s to say she can’t make it to Washington juuuuust in time if she left at 5 p.m.). Another commonly floated nominee is in Philly [I'm unclear who--anyone know where Mary Ann Glendon is? I can dream.] and John Roberts is in town.

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Not Luttig?



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I’m just told: Not Luttig. Ann Compton said so on a WMAL talk show two minutes ago that ABC sources say it’s not Luttig, for what that’s worth.

Did Major Garrett Just Say



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that he expects it won’t be anyone who can be perceived as “an angry white man”? I assume there’s no other kind of white male? With every comment like that I become more and more convinced Bush will do the impossible.

Here’s my question: Supposedly when O’Connor was chosen everywoman got goosebumps, wanted to hug her…will men have the same reax if John Roberts is the nominee?

RE: Hewitt



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I’ll be on around 10pm. For those that don’t get his show locally, you should be able to listen in through his website here.

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RE: Luttig



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While I am not terribly surprised to see the Luttig children in proper attire in DC even if there is not a special occasion, the fact that Luttig is there is interesting. After all, he was down in Richmond this morning to hear oral arguments in the Padilla case, so he clearly had to beat feet back.

The Case for Edith (Jones)



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Bush 41 raised taxes. Bush 43 lowered them. Bush 41 went to war with Iraq, but left Hussein in power. Bush 43 toppled the Hussein regime. Bush 41 picked David Souter over Edith Jones for the Supreme Court. Bush 43 . . .

Dark Horses from Off the Bench



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Rumors are running wild now that Judge Clement has confirmed she’s out. Most speculation is focusing on judges, but who says the nominee needs judicial experience. Harvard’s Mary Ann Glendon is a possibility, but I doubt it’s her. For a White House that likes surprises, and wants a conservative candidate the Dems can’t tough, there are other options. One intriguing possibility: Maureen Mahoney. Her legal credentials are impeccable and beyond reproach. A former clerk to Chief Justice Rehnquist, she has a sterling conservative reputation, having served in the Bush 41 SG’s office. She was named to a district court in 1991, but the non-obstructionist Democratic Senate never moved on her nomination. There is a wrinkle: She represented the University of Michigan Law School in the affirmative action cases, and made comments suggesting she believed in the law school’s case. But this might not be disqualifying in this administration, as her position was not that far from that of Bush’s own legal team. Picking Mahoney would also suggest Bush is picking a nominee “just like O’Connor.”

CNN



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has shown pictures of the Luttig family in D.C. today. Kids in uncomfortable-for-D.C.-in-July kinda clothes.

Hugh Hewitt



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is doing a long night of SCOTUS coverage tonight. You’ll probably be hearing Adler and Coffin. I’ll be on around 10:30.

Sheesh



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Charles Grassley very irritably just told Wolf Blitzer Grassley is owed the courtesy of hearing the name of the nominee before you little people hear it.

Not Clement



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Which Woman?



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Just a couple of hours ago, I was convinced that Clement was going to be the pick, based not simply on the popular sentiment, but on a series of conversations I’ve had with people in positions to “know things” over the past few days. But in the last couple of hours, a number of people I trust have expressed that they are now less than convinced, thinking that perhaps Bush will pull a last minute switch. There is even some suggestion that the nominee might not be at the White House when he makes the announcement tonight (which does not make much sense to me, given the prime time spectacle of the thing). There is still some last minute candidate promotion going on, and I note that Judge Alice Batchelder from the Sixth Circuit not only received high praise from Christopher Flannery today on NRO, but that Peter Schramm of the Ashbrook Center likewise has joined the fray in making the case for Batchelder.

Assuming that the mounting speculation is true, and that Clement is not the nominee, I would put my money on Priscilla Owen. She’s got the outside-the-federal-judiciary bona fides that Senator Specter has been crying for, she is from Texas, which raises her stock with Bush, and the leadership was insistent that she be the first judge pushed through after the filibuster logjam was broken, presumably to put her in a position to be elevated when O’Connor retired. Yes, there would be “war,” to quote Chuck Schumer, but the objections raised to Owen were particularly baseless, for reasons set out previously on NRO more than once.

Think Progress on Clement



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Two posts on the Center for American Progress’ new judicial blog start the criticism of Judge Clement. First, Eduardo Penalaver suggests Clement “stands among the most conservative judges on one of the most conservative courts in the country,” at least on the issue of sovereign immunity because she appears to believe in it. Penalaver gives little consideration to the fact that the opinion is a reasonable interpretation of existing Supreme Court precedents supporting sovereign immunity — opinions joined by the Justice whom Clement may be nominated to replace. By that standard, Clement’s decision to join this opinion dissenting from denial of an en banc petition is hardly remarkable.

Brad Joondeph follows up with a post suggesting that Clement may believe federal civil rights laws are unconstitutional. Where would he get this idea? From a dissent from denial of an en banc petition written by Judge Edith Jones in a case challenging the constitutionality of an application of the Endangered Species Act, GDF Realty v. Norton. In that opinion, Judge Jones argued that “the regulated activity is the take [of the species]” — in this case a bunch of cave bugs — rather than any commercial activity. On this basis, Jones concluded that the federal government lacked the constitutional authority under the commerce clause to prohibit the development in question. Joondeph suggests this would place federal civil rights statutes in jeopardy because they prohibit discrimination, rather than economic conduct. This is absurd. The Civil Rights Act bars racial discrimination in employment and in public accommodations — in other words, it is confined to economic contexts and therefore fits neatly under commerce clause authority under current precedent. Moreover, Jones’ opinion made clear that part of the problem for the Feds in GDF Realty was that the species in question — a collection of cave bugs that only exist in Texas, have no commercial value, and never leave their caves, let alone the state — had a particularly tenuous connection to interstate commerce. Therefore application of the Endangered Species Act here was more problematic than in cases involving more economically valuable species, such as wolves or migratory birds. The idea that this application of commerce clause precedent would threaten laws barring discrimination in hiring or public accommodations is simply unfounded.

“This Would Be War”



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John King just now on CNN speculating on Janice Rogers Brown as a “wild card.”

Clement’s Opinions and More



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SCOTUSBlog’s Tom Goldstein is posting summaries of notable Clement opinions here. He’s also collected more Clement-related resources here.

What If It Were Ashcroft? Pryor?



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Ramesh has two posts you’ll want to read up in The Corner on abortion and Clement.

Charmaine Yoest



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Bait and Switch?!?



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This would certainly set off Washington. I don’t believe it, but it’s an interesting thought.

Prime Time Pick



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I agree, Kathryn. The President’s decision to announce his first Supreme Court nomination is a very wise move. One of the lesson’s of past nomination battles is the importance of defining the nominee before the opposition. This is particularly important with Supreme Court nominations where less of the battle will get waged under the radar. Starting tonight, and on tomorrow morning’s news programs, the video will be of the President commending his nominee, rather than a Massachusetts Senator warning of segregated lunch counters and back alley abortions.

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