Bench Memos

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“He Is a Very Impressive Man”


Roberts gets the Bill Clinton endorsement.

I imagine him privately mischievously bummed about that.

It’s a Boy. Deal.


ZZZZZZ. The Where’s-the-Girl?-I-Wanted-a-Girl whines continue. And this time the complaint, too, is that there is not enough whining.


Red Herring


Here are two reasons why the hand-wringing over Roberts and religion is misplaced.

One: Does anyone doubt that if Roberts were pro-choice that we would not be having this discussion? If Roberts said tomorrow that Roe was safe, do you think any liberal senator will say: “Now hold on there, Judge. Are you basing that on your religion? Some Catholics favor permissive abortion because, they say, the soul is not infused until some time well after conception–maybe forty days later. If you think that, Judge, I’ll have to vote against you for ignoring the separation of church and state.”

Do you think any conservative senator will say it?

Two: Would someone please identify one moral norm that might be involved in some decision a Justice Roberts would be called upon to render, but that moral norm cannot be known by unaided reason? Does not John Roberts’s
own Catholic Church say of the norms thatmight be so implicated: They are
written on the human heart? They are naturally knowable? They do not
depend upon revelation or religious authority? They are available to all reasonable persons–religious or not? In fact, name one moral norm that a Justice Roberts might apply in a case that was not, until a generation or a little more ago, the common morality of America and of America’s law?

What exactly, then, is it about Catholicism that we should be so worried about?

Roberts, Religion, and Recusal


Over at “Mirror of Justice,” Professor Steve Bainbridge has a detailed, definitive discussion and analysis of the “Roberts’s religion” dust-up. Bainbridge is as clear and perceptive as Hitchens is (on this issue) misguided and as Cuomo is embarrassingly confused.

Roberts, Quotas, and the Voting Rights Act


Law professor Richard L. Hasen argues in a Los Angeles Times op-ed today that Roberts’s DOJ records from the early 1980s show that he was “hostile to expansive voting rights legislation.” What Hasen means by this inflammatory phrase is that Roberts and the Reagan administration opposed a change to section 2 of the Voting Rights Act–the adoption of the so-called “effects” test–on the ground that it would establish a racial quota system for electoral politics, “a notion we believe is fundamentally inconsistent with democratic principles.”

Hasen does not make any effort to refute Roberts on the merits. Instead, he asks: “How many fewer minority legislators would be in office in Congress and in state and local legislatures if Roberts’ position had prevailed in 1982?” Similar questions can, of course, be asked of any racial quota. Posing the question hardly suffices to resolve the broader question of the legitimacy of quotas.

Hasen also raises the specter that, if/when Congress reauthorizes the preclearance provisions of section 5 (which are set to expire in 2007), Justice Roberts might rule that the reauthorization is unconstitutional. Why, Hasen asks, given Roberts’s views on section 2, would “he look charitably on a renewed Section 5″? The answer, as it happens, is provided in the very documents that Hasen has been reviewing. As Roberts explained in 1982, section 2 and section 5 “are addressed to different problems. It makes sense to have an effects test [in section 5] for election law changes in certain areas which suffer from a history of election law discrimination. Section 2 is not so limited.”

On civil rights, the real battle between Roberts and his critics was and is over racial quotas. Scaremongering, distortions, and misplaying the race card should not be allowed to obscure that.

Roberts’s documents show that he embraced the “bedrock principle of treating people on the basis of merit without regard to race or sex.” The Left’s vision, as Roberts recognized way back then, treats people not as individuals but as members of castes or social groups and focuses “on advancing particular groups as groups.”


Girl Crazy


My latest syndicated column up elsewhere on NRO is on the nutty it-should-have-been-a-chick post-Roberts announcement cries–which I would have ignored if it weren’t coming from supposedly serious people (Sandra Day O’Connor, United States senators).

For the record: Most of the hate mail I’ve gotten about it has come from men. Trying too hard to please the wrong women, if you ask me.

“High Court Nominee Sides With Restraint”


This, my friends, is the headline so very many who voted for George W. Bush this fall were yearning for (some lusting).

A Successful Day at PFAW


Orrin Kerr:

Congratulation to the People for the American Way for getting their entire collection of John Roberts talking points into a single “news” article in the Legal Times.

Dems & Docs: Go, Lanny!


From The Hill:

The push for documents, however, could have its share of pitfalls for Democrats, especially if they are perceived as overreaching in what they demand from Roberts, other Democratic strategists noted.

“Arguing over whether or not he has to turn over every memo that he wrote in the Justice Department in the Reagan administration … is what I would describe as an instinctively partisan issue that has nothing to do with what the American people care about,” said Lanny Davis, a former special counsel to President Clinton who is now a lobbyist with Orrick, Herrington & Sutcliffe.

Roberts Answers


Here’s his Q&A with the Senate Judiciary Committee, on the NYTimes site–part 1 & 2. And here’s the Times write-up. (Here’s an alternative link to the questionaire.)

It Takes a Village


I just checked out Kathryn’s link to the PFAW ad. Yes, there is a picture of a guy or two in hard-hat regalia. And I take it on faith that they are demanding Roberts’ memos. But, no, Kathryn, those are not real construction workers. (Who would expect them in a PFAW ad?) They are the
Village People.

Breaking News


WASHINGTON (Reuters) – As a young aide to Attorney General William French Smith in the early 1980s, Supreme Court nominee John Roberts embraced the conservative Reagan administration’s efforts to limit judicial power and certain civil rights remedies, according to memos released on Tuesday.
Translation: He did his job!

Translation: Slow news day.

Roberts and Catholicism


E.J. Dionne Jr’s op-ed in the Washington Post today argues in favor of questioning John Roberts on how his Catholic faith might affect his judicial decisionmaking. Here’s the most telling passage:

“Former New York governor Mario Cuomo is, like Kerry, a Catholic Democrat who has tangled with his church’s leaders on the politics of abortion. Cuomo wondered during a recent phone conversation how those bishops who tormented Kerry would react if Roberts said that his religious views would not affect his rulings on abortion cases. To defend such a stance by Roberts, Cuomo said, ‘the bishops who went after Kerry would have to say that it’s different for a judge, but that would be very hard to explain.’ Indeed.”
“Indeed”!? Surely American bishops can be expected to understand and to explain the elementary point that judges, unlike legislators, are bound to determine the meaning of the law, not to engage in policymaking. The fact that American bishops have not criticized Scalia and Thomas for failing to adopt a “pro-life” reading of the Constitution amply testifies to the point.

Privilege Claims


This Washington Post story is very misleading in its downplaying privilege claims differences between the Clinton and Bush dministrations. The Clinton administration frequently misused attorney-client privilege and executive privilege to conceal evidence from criminal investigators — a matter settled by U.S. v. Nixon during Watergate and subsequently enforced against Clinton by the Eighth Circuit. (Incidentally, I find aspects of U.S. v. Nixon problematic, but that’s not relevant here.) Among other things, Clinton was trying to prevent law enforcement from questioning several of his White House staffers who were indeed government lawyers, but who were also assisting Clinton in his personal capacity in the context of a criminal investigation. (Moreover, there’s a crime-fraud exception to the privilege, which was also relevant in the Clinton case.) Clinton even tried to concoct a new privilege — the Secret Service Protective Function Privilege — which was also rejected by the courts.

The Los Angeles Times the other day attempted to make the same point as the Post, drawing a false comparison between the Clinton and Bush Administrations. Clinton was attempting to protect himself from allegations of obstruction and perjury by asserting privilege claims belonging to the executive branch; Bush is trying to protect the constitutional prerogatives of the executive branch in the same manner of most of his predecessors, bar Clinton.

Construction Workers Demand


the release of Roberts DOJ documents!! (See PFAW ad.)

Trying to Be Adult About This


Senate Dems say they won’t take out the Bolton appointment on Roberts.

I’m Not Looking to Pick on Arlen Specter or Anyone Here, But...


…what exactly is the point of waiting all these weeks before the Roberts hearing starts? There will be plenty of e-mails where that Smeal one came from–nice rallying tools. Wouldn’t August 8 hearings make much more strategic sense?

He’s Bork I Tell You!!!!


An e-mail that went out from the Feminist Majority last night:

Dear Feminist Activist, [That's me!]

The coalition opposing John Roberts for the Supreme Court is growing. Leading in the opposition to Roberts are women’s groups, convinced from his record he will vote to reverse the right to privacy and Roe v. Wade, and he will undermine federal protections for women’s clinics from violence. Among the groups opposing Roberts are the Feminist Majority, the National Organization for Women, NARAL Pro-Choice America, the National Abortion Federation,, National Council of Jewish Women, National Coalition of Persons with Disabilities, Rainbow PUSH Coalition, Americans United for Separation of Church and State, the National Latina Coalition for Reproductive Health, ADA Watch, and the Religious Coalition for Reproductive Choice.

What Is Roberts Hiding?
The White House has now released Roberts’ files from when he was in the Reagan Administration. Despite demands by Democratic Senators, the White House still refuses to release papers from when Roberts was deputy solicitor general under the George Bush, Sr. from 1989 to 1993. During this time, he was the co-author of a brief that said Roe v. Wade was wrongly decided (Rust v. Sullivan) and he defended Operation Rescue and a convicted clinic bomber (Bray v. Alexandria).

In a front page story today, the Washington Post reports that after carefully studying the released papers from his Reagan days that Roberts was in the “the vanguard of a conservative political revolution in civil rights, advocating new legal theories and helping enforce the Reagan administration’s effort to curtail the use of courts to remedy racial and sexual discrimination.”

The papers just released reveal Roberts was for narrowly construing women’s rights and civil rights. He was for limiting racial integration via busing, and would narrow Title IX and affirmative action. For example, in a memo to the attorney general in August 1982, Roberts said he agreed with a decision by a federal district court that limited Title IX, the landmark 1972 law prohibiting sex discrimination in federally funded education. Roberts argued Title IX should only apply to specific programs receiving federal aid, not entire universities. This argument was used by the Reagan Administration in Grove City v. Bell a 1984 US Supreme Court decision that gutted Title IX (which feminists led the fight to reinstate with the Civil Rights Restoration Act of 1987).

Roberts’ Selective Amnesia, Or the Meaning of the Word “Member”
Roberts has been linked to the ultra-conservative Federalist Society, a right-wing law group. Although Roberts says he has no memory of belonging to the Federalist Society, his name is listed in the 1997-98 leadership directory as a member of the steering committee of its Washington chapter. Other members of the Federalist Society, which does not release its membership lists to the public, include former Supreme Court nominee Robert Bork, former Christian Coalition president Donald Paul Hodel, Senator Orrin Hatch (R-UT), and Edwin Meese, a trustee of the right-wing Scaife Foundation, and past Solicitor General Theodore Olson. Al Ross, president of the Institute for Democracy Studies (IDS), provided the Federalist Society leadership directory to the Washington Post. The White House had denied reports that Roberts was a member, and had pressured news outlets to issue retractions. Even after the directory was revealed, the White House quibbled over whether Roberts was a “member.”

We will keep you updated on the Roberts fight. Women, who have the most to lose, must be the strongest voice in stopping Roberts. This time, for once, we must not be ignored.

Add your voice to ours by contacting your Senators and the Senate Judiciary Committee today and urging them to thoroughly question Roberts on the right to privacy, women’s rights, and civil rights.

For Women’s Lives,

Eleanor Smeal
Feminist Majority

Media Distortions of Roberts’s Executive-Branch Record—Part V


I’ve just reviewed the August 1981 memo from Roberts to the Attorney General that today’s Washington Post article (which I’ve critiqued in the two previous posts in this series) discusses. That memo concerns a meeting request made by Arthur Flemming, the chairman of the U.S. Commission on Civil Rights.

The Post’s discussion of the memo is extremely one-sided. It says that Roberts “derided” a report that Flemming passed along, but there is nothing in his language that is mocking. The Post clips its quotations from the memo in a manner unfavorable to Roberts. In its apparent effort to obscure that the battle is largely over quotas, the Post drops the word “quotas” from the memo’s reference to “the purported need for race-conscious remedies such as busing and affirmative action quotas.” Likewise, it fails to note that the “serious criticism” that Roberts says the report “is subject to” is its failure “to recognize the actual effect of race-conscious remedies,” including the fact that busing “has been ineffective in redressing racial imbalance.”

It is, of course, possible that the Post reporters are merely sloppy, but, as my previous posts and essay have documented, the evidence of bias seems very strong.

So, Wait. Are You Saying That He Is Conservative?


From the Media Research Center:

NPR’s Nina Totenberg, who has tagged Supreme Court nominee John Roberts as “very conservative,” “very, very conservative” and “very, very, very conservative,” as well as “a really conservative guy,” “a hardline conservative” and “a clear conservative,” to say nothing of being “a conservative Catholic,” on Inside Washington over the weekend relayed that after she “spent five hours reviewing all of his documents from when he worked in the Justice Department,” she “was actually quite surprised at how, how very, very conservative he was.” Apparently, she didn’t listen to herself.


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