Bench Memos

NRO’s home for judicial news and analysis.

A Byrd Veto?


Major Garrett on Fox News reported tonight that sources inside the Bush
administration’s search for a Supreme Court nominee tell him that there’s a
plan to run several names by Sen. Robert Byrd and seek his pre-approval so
as to forestall any Democratic filibuster threat. It is hard to imagine an
authentic constitutionalist who would be acceptable to Byrd, so I hope
Garrett’s reporting is wrong about this.

Re: The Supreme Court and Foreign Law


Here’s the testimony that I will present at tomorrow’s (Tuesday’s) hearing in the House of Representatives on the Supreme Court’s misuse of foreign law in construing the Constitution. I will focus on the Court’s opinion several months ago in Roper v. Simmons, which relied on international opinion” in support of its ruling that the death penalty constitutes “cruel and unusual punishment” when applied to any murderer who was 17 when he committed the murder. I will also address the remarkably feeble defenses of this practice (e.g., “Well, on this kind of an issue you’re asking a human question, and the Americans are human–and so is everybody else”) offered by Justices Ginsburg and Breyer.

An excerpt:

No Justice has articulated, and there is not, any legitimate basis for the Supreme Court to rely on contemporary foreign laws or decisions in determining the meaning of provisions of the Constitution. Moreover, it is clear that there is no principle that any Justice has devised or will adopt that will explain why it would be proper to look to some contemporary foreign and international legal materials, but not others, to construe the Constitution in some instances but not in others. The six Justices who nonetheless resort to these materials do so because they embrace an essentially lawless–i.e., unconstrained–view of their own role as Justices.

It is no coincidence that it is these same six Justices who have endorsed the vacuous New Age declaration that “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” For that declaration is nothing more than camouflage for the underlying claim by those Justices to have the unconstrained power to define for all Americans which particular interests they think should be beyond the bounds of American citizens to address through legislation.

The Framers established a constitutional structure under which American citizens, within the broad bounds delineated by the Constitution, have the power and responsibility to decide how their own states and communities and the nation should be governed. In their ongoing project to demolish that structure, these six Justices see foreign law as another powerful tool that they can wield whenever it suits them.

It follows that the broader long-term solution to the problem that H. Res. 97 usefully addresses is the confirmation to the Supreme Court of originalist Justices, like Scalia and Thomas, who understand that the Constitution constrains them to construe its provisions in accordance with the meaning they bore at the time they were promulgated and that it does not permit them to impose their own policy preferences on the grand (or minor) questions of the day.

If you’re interested in the hearing, a video webcast should be available here both live (at 4:00 tomorrow) and for some time thereafter.


NYTimes & LaTimes


I didn’t think those editorials were shockingly similar. Note, for example, that the NYTimes edit complains about the rejection of pragmatism, while the LATimes edit gently distances itself from pragmatism. I think the LA Times editorial was far and away superior to the NY Times, which tries to accomplish rather more than can be done with scary adjectives such as “far right” and “frightening.” Depending on the definitions of the terms the L.A. Times uses–such as “activist” and “strict constructionist”–I’d even go so far as to say that the L.A. Times’s editorial is basically correct.

Taylor Contra Gonzales


The National Journal’s Stuart Taylor gives five reasons Alberto Gonzales should not be nominated to the Supreme Court.

“Extraordinary Circumstances”


From the letters page in yesterday’s Lincoln Journal-Star

Circumstances explained

In a July 12 letter Robert A. Wolff of Sterling said I owe it to the people to say what I consider extraordinary circumstances when it comes to filibustering a nominee for the U.S. Supreme Court.

I have repeatedly made my position clear in numerous interviews with reporters since our group of seven moderate Republicans and seven moderate Democrats brokered a compromise to break the logjam on judicial nominations.

On the retirement of Justice Sandra Day O’Connor, the Los Angeles Times quoted me as saying “If someone was committed to being a judicial activist that would raise the question of extraordinary circumstances.” There was a similar quote in the Washington Post. On Fox News Sunday another member of the “Gang of 14,” Republican Sen. Lindsey Graham and I concurred that “Based on what we’ve done in the past, ideological attacks are not an extraordinary circumstance.” That position was restated at a news conference in Omaha the day O’Connor announced her retirement.

I will say it once again for Wolff’s benefit as he seems to have missed it in the past; philosophical views do not constitute extraordinary circumstances. I would hope Wolff would agree that the Supreme Court is no place for an activist judge.

U.S. Sen. Ben Nelson, Omaha




President Bush, during a presser with the India’s prime minister just now, talking about candidates for SCOTUS who will be interviewed, added (super-roughly transcribed): I’ve got some people in contention perhaps that I’ve spent some time with…who I know

Great Minds Think Alike. . .


The New York Times (“The Right Kind of Justice“) and L.A. Times (“The Right Conservative“) ran suspiciously similar editorials this weekend. Whose talking points are they from?

The Supreme Court and Foreign Law


Here’s an issue that deserves prominent play in the public discussion of what makes a good Supreme Court justice: In recent years, six justices of the Supreme Court have relied on foreign and international legal decisions and other legal materials to construe the meaning of the U.S. Constitution. It should be no surprise that these are the same six justices who have endorsed the vacuous New Age declaration that “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” For both moves are nothing more than camouflage for the essentially lawless–i.e., unconstrained–view that these six have of their own power as justices to override the political choices that American citizens make through their elected representatives.

The strikingly feeble justification that these justices offer for their illegitimate reliance on foreign law is quite amusing, as I hope this NRO essay of mine from April, “Alien Justice: Ruth Bader Ginsburg vs. the Declaration of Independence,” shows.

I am pleased to report that I will be testifying on this issue at a hearing before the Constitution subcommittee of the House Judiciary Committee next Tuesday. Chairman Steve Chabot of Ohio and other members of the subcommittee are really engaged on this issue, so it should be an excellent hearing. (I will link to my testimony as soon as it is available.)

Chief Determination


Just to emphasize his statement yesterday: Rehnquist wears his trusty Nike hat today. (Decode that here.)

Brains Yes, “Biggest Brain” No


Ann Althouse dissents from the desire to appoint a “genius” to the Supreme Court: “I know a lot of big-brained people in law. I’m not sure which one has the biggest brain . . . Maybe we could sit them in a room and grill them with a series of tests. But there’s a damned good chance the person with the biggest brain would be a disaster on the Court.”

RE: Genius Advice


Rick Garnett’s advice is quite sound. One addition: the desirable candidate is not just any “genius” or outstanding “athlete,” but, first and foremost, the best among those with the appropriate originalist judicial philosophy. To illustrate the point perveresly: Justice Kennedy (Bork III) was chosen not because of his sterling intellectual qualifications, profound understanding of the jurisrudence of constitutional interpretation, or brillance of his record on the 9th Circuit. Rather, he was picked because it was believed that he, despite his mediocre qualifications, would at least vote “right” on the important issues before the Court. Mediocre intellects without a well thought out, coherent jurisprudence (and the self-confidence that comes from that) are ill-equipped to withstand the seductive attempts of the liberals.

Rehnquist Announcement


The Washington Post’s Campaign for the Court blog has a round-up of reactions to the Rehnquist announcement (some of which are quite repetitive). I’m inclined to agree with Rick Garnett’s take quoted here: This simplifies things for the White House, and will make it easier for the President to nominate–and for the Senate to confirm–a solid candidate.

Justice Moore


It seems that the Conservative Caucus wants President Bush to nominate former Alabama supreme court justice Roy Moore to the U.S. Supreme Court. Alan Keyes spoke at the CC press conference making the case, according to this report. Thankfully, I don’t think we have to worry much about this one.



AP is reporting Rehnquist has released a statement saying he is not resigning.

Lubet’s Conflicting Views on Recusal


A reader calls to my attention the fact that Prof. Steven Lubet’s remarks on Gonzales’s recusal obligations appear sharply at odds with the views that he expressed a year ago on the flap over Scalia’s duck hunt. The proposition that “Scalia ought to be the sole judge of his own impartiality” was “wrong,” Lubet declared, and under existing law there was “no good reason for the members of the Supreme Court to arrogate such power to themselves.” The same Lubet who worked himself into a lather over Scalia’s duck hunt (“the more we learn about his duck hunt, the worse it looks”) and emphasized that recusal questions are “serious matters for the United States Supreme Court, which depends on public confidence for its legitimacy,” now appears inattentive to, or blithely dismissive of, the far more serious recusal obligations that Gonzales would face.

By the way, in addition to the powerful opinion that Scalia issued explaining his non-recusal, did anyone notice that he ruled against the interests of the administration and Cheney in a case that was pending at the same time and that presumably was of far greater importance to them–the Hamdi case (which concerned the constitutional rights of a citizen enemy combatant)?

Thanks, President Clinton!


CNN just conducted a live interview with Bill Clinton, who had a few important words of advice for President Bush on how to go about picking a Supreme Court Justice. President Clinton obviously understands that the chief executive of the United States has the sole constitutional responsibility of nominating Supreme Court Justices. (Remember, Clinton’s picks were Ruth Bader Ginsburg and Stephen Breyer.)

Here were Clinton’s prominent pieces of advice.

1. Democrats will launch political attacks on anyone President Bush nominates:

“[T]he people that are your political opponents will politicize anybody you appoint anyway.”

(Note: this describes the behavior only of Democrats, inasmuch as Senate Republicans kindly and quickly confirmed Ginsburg, the former general counsel of the ACLU.)

2. Choose someone whose judicial philosophy is consistent with yours:

“There’s no substitute for appointing someone [who] has convictions that are consistent with yours.”

(He also said that a nominee should be able to “think” and should have “a heart as well as a mind,” but let’s assume that one’s not even being disputed by the liberals in his own Party.)



has been relaesed from hospital (via FNC)

“More Judge Rumors”


Erick-Woods Erickson reports. Most of what he’s got tracks with what I’m hearing.

Senator Hatch on Clinton’s Consultation


Senator Hatch’s outstanding NRO essay today on the Senate’s advise-and-consent role powerfully refutes those who attempt to invoke as precedent Clinton’s consultation with Hatch:

In 1993, President Clinton sought my input when considering a replacement for the retiring Justice Byron White. Some senators are today fond of waving my book Square Peg, in which I described cautioning President Clinton that confirming some candidates he was considering, such as then-Interior Secretary Bruce Babbitt, would be difficult. President Clinton instead nominated Ruth Bader Ginsburg, and she was easily confirmed.

President Clinton sought my input without my demanding it because he believed it would help him fulfill his constitutional responsibility for making judicial nominations. He did so not because Senate Republicans threatened filibusters or demanded some kind of veto power over his nominations. We did not try to impose a “consensus” standard or insist that a nominee meet some super-majority “widespread support” threshold.

Instead, President Clinton sought my input because I had established a cooperative relationship with him, because he knew his nominees would be treated fairly. Senators demanding consultation and threatening filibusters today might instead consider taking the same approach. Perhaps earning consultation will work better than demanding it.

Today’s Articles on Gonzales and Recusal


In an article today on Gonzales and recusal in the Washington Post and in another one in the Wall Street Journal, remarks of Prof. Steven C. Lubet are used to minimize the severe recusal baggage that Gonzales would bear as a Supreme Court justice. I have these comments on Lubet’s remarks:

1. There is nothing in Lubet’s remarks to indicate that he has examined seriously (or is even familiar with) the particular instances of recusal–on important national-security cases and culture-war cases (see here and here)–that Andy McCarthy and I have presented.

2. Lubet’s assertion that the recusal standards “are pretty elastic” is not a fair representation of the very specific language of 455(b)(3) (quoted herein). Moreover, although the outer limits of 455(a) are far from clear, key national-security cases not already covered by 455(b)(3) would fall within the core of 455(a), as Gonzales would be judging the legality of a specific policy or course of conduct that he helped design or advise on. (Scalia’s duck-hunting trip is therefore not remotely relevant to this question.)

3. Lubet’s observation that Gonzales is a named party in cases only in his official capacity is correct but beside the point. I have not argued that his being a named party suffices to require recusal, nor do I regard it as a significant factor.

4. Lubet observes that “[i]t would be entirely up to Gonzales to decide” to recuse and that the “Supreme Court is a law unto itself in these matters.” As a matter of enforceability, that is (almost) surely true. But it would be irresponsible, and an injustice to Gonzales’s integrity, to assume that Gonzales would not faithfully apply the recusal standards.

In short, it would be a serious mistake for anyone to find comfort in Lubet’s remarks.


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