Bench Memos

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“Arlen Specter sounds exactly like Chuck Schumer”


Richard Cohen on Tolerance and Intolerance


From the Washington Post:

The spectacle of conservative groups and the White House rushing to assure their constituencies that Roberts is not — really and truly — a tolerant man is both repulsive and absurd. In the end, this tethering of conservatism to the lost cause of homophobia will earn the rebuke of history. In the meantime, though, it puts Roberts on the spot. He might assert that he has been cruelly mischaracterized and, for benefit of career, renounce the work he had once done. But more likely his pro bono work speaks for itself. Until he says otherwise, on gay rights, he’s out of the closet.


Even More on NARAL’s Lies


Last Friday the Washington Post reported (in the 9th paragraph here) that, while serving in the White House counsel’s office, Roberts advised that someone who had been convicted of bombing an abortion clinic should not receive any special consideration for a pardon. According to the Post’s story, Roberts wrote, “No matter how lofty or sincerely held the goal, those who resort to violence to achieve it are criminals.”

Yet three days after this report, on the basis of wild leaps and misrepresentations and no affirmative evidence whatsoever, NARAL claims Roberts has an “ideology [that] leads him to excuse violence against other Americans.” Shameless and shameful.

Still More on NARAL’s Lies


Yet further evidence that NARAL’s ideology makes it confuse violence and non-violence: Another amicus brief in Bray was submitted by 17 individuals such as Daniel Berrigan “who have been or are actively involved in the civil rights, anti-poverty, labor and peace movements” and who “share a common belief in the importance of nonviolent resistance to injustice.” That amicus brief, like Roberts’s submitted on behalf of the United States, sided with the position of the anti-abortion protesters that the Ku Klux Klan Act of 1871 did not properly apply to their unlawful acts of trespass and obstruction.

Small Fix


A kind and knowledgeable reader writes to correct me, saying that the quote from The Federalist used by the Federalist Society “is from No. 78, which was written by Hamilton, not Madison. Not that Arthur Schlesinger Jr. would know the difference.” Yes, I know that the quotation prominently on display at the bottom of the FedSoc’s website is from No. 78, and that it was written by Hamilton. I was working from memory, and I’m still sure that somewhere I’ve seen quotations from Madison’s contributions to The Federalist used by the Society. But whatever Mr. Schlesinger would or wouldn’t know, the Federalist Society knows full well that there was a crucial time when Hamilton and Madison made common cause for the Constitution–as Hamiltonians and Madisonians alike can do today. So it is fitting that the Society uses Hamilton’s words and Madison’s image together.


More on NARAL’s Lies


NARAL’s ad and press release give the false impression that the Bray case involved “bombings” and other forms of violence. What was instead at issue was the application of the Ku Klux Klan Act to trespassing and obstruction—unlawful conduct to be sure, but of the sort that is usually described by the Left as peaceful civil disobedience when carried out in support of causes that it favors.

It is doubly shameful that NARAL falsely accuses Roberts of having an “ideology” that “leads him to excuse violence against other Americans,” as the very purpose of NARAL is to promote an ideology that excuses the violence of abortion against unborn human beings.

Dems Are Going Batty


NARAL’s Lies


Even by the standards of the pro-abortion movement, the new television ad (which Kathryn links to here) that the group now calling itself NARAL Pro-Choice America has unleashed is particularly mendacious. The ad features a woman injured in the 1998 bombing of an abortion clinic, attempts to link her injury to an amicus brief that Roberts filed in 1991, and says that Americans should oppose a nominee “whose ideology leads him to excuse violence against other Americans.” NARAL’s press release disingenuously claims that “we are not suggesting Mr. Roberts condones or supports clinic violence” when that of course is exactly what its ad does.

A few comments: 1. The case in which Roberts submitted an amicus brief on behalf of the United States, Bray v. Alexandria Clinic, presented the question whether the Ku Klux Klan Act of 1871 provides a federal cause of action against persons obstructing access to abortion clinics. The particular provision at issue had long been construed to require showing of a “class-based, invidiously discriminatory animus.” Relying on precedent and logic, the Supreme Court easily determined that opposition to abortion does not reflect an animus against women as a class, “as is evident from the fact that men and women are on both sides of the issue, just as men and women are on both sides of petitioners’ unlawful demonstrations.”

2. Roberts never “excuse[d] violence against other Americans.” There are plenty of laws that criminalize violence outside abortion clinics. Roberts never took any action to undermine any of them. It is NARAL that has the “ideology” that every law should be distorted to advance the cause of abortion.

3. Following the Bray decision, Congress enacted into law in 1994 the so-called FACE Act, which imposes far more comprehensive and severe penalties against those obstructing access to abortion clinics. The fact that this law failed to deter the 1998 bombing that injured the clinic worker featured in NARAL’s ad makes it all the more ludicrous to suggest that Roberts’s proper reading of the Ku Klux Klan Act of 1871 in 1991 is somehow responsible.

Roberts, on the Record: “listening to this man, that he is a conservative.”


Rough transcript from ABC’s This Week yesterday:

STEPHANOPOULOS: And we begin today with that exclusive look at Judge John Roberts. Ever since President Bush picked him for the Supreme Court, we’ve seen a lot of him — thanking the president, schmoozing senators, hopping in and out of cars. We’ve also heard a lot of people talking about Roberts and what kind of Supreme Court justice he’d be — but barely a word from the judge. That’s the tradition. Supreme Court nominees don’t speak out until their hearings, and those don’t begin until early next month. But this morning, for the first time on national television, we have Judge Roberts answering the kind of questions he’ll get at those hearings. Roberts, himself, discussing some of the most contentious issues that come before the Supreme Court. The conversation took place before Roberts was nominated, before he was even a judge. It was first aired on July 2, 2000, when Roberts was interviewed on a public affairs program for ABC’s Dallas affiliate, WFAA. He was there to analyze the Supreme Court term that had just ended from a conservative perspective. It was a term steeped in controversy. With the Bush-Gore campaign at a fever pitch, the court had decided to prohibit prayers at high school football games, permit the Boy Scouts to ban gay troop leaders, and prevent a state from banning late-term abortions. Roberts discussed those cases with journalist Dave Cassidy, David Jackson and Carl Leubsdorf. And as you’ll see, he speculated about how the Bush presidency might change the court. Little did Roberts know that five years later he would be the man picked to change that court. (BEGIN VIDEOTAPE)

(UNKNOWN): Looking back at the recently completed Supreme Court session, what do you think were the most important things that it did?

J. ROBERTS: Well, as a — taking this term as a whole, I think the most important thing it did was make a compelling case that we do not have a very conservative Supreme Court. Take the three biggest headline cases, you know: Miranda, school prayer, abortion. The conservative view lost in
each of them.

(UNKNOWN): Now, how can that be, after we have nine justices, of whom seven were appointed by Republican presidents, only two by Democratic presidents? J. ROBERTS: Well, it’s an old story that the appointees, once they’re on the court, they tend to go their own way, and it’s not always the way that the presidents who appointed them predicted would be the case. (END VIDEOTAPE)

STEPHANOPOULOS: But it just happened that term. Republican appointees Anthony Kennedy, Sandra Day O’Connor and David Souter joined liberal justices to prohibit student-led prayer at high school football games.

(BEGIN VIDEOTAPE) J. ROBERTS: I think the argument about government-sponsored, government-initiated prayer in schools is over, but that’s not necessarily all that we’re talking about. The test, as I see it, is, if the prayer is genuinely student- initiated, student-led and does not look like something the government, the school district is sponsoring, then it’s going to be all right. But if the government is involved either in initiating it or sponsoring it, then you run into trouble.

(UNKNOWN): But isn’t an old argument, now that we’re so much more diverse, if I can use that word, so many more religions, isn’t it more likely that a Christian prayer that would have worked at a high school game in Texas, because mostly Christians were in the stand, hasn’t that changed? Is it worth fighting that fight anymore?

J. ROBERTS: Well, the fight really isn’t over does a particular prayer or invocation offend somebody in the audience. The issue is, is this being sponsored by the state?

J. ROBERTS: The real problem with the prayer before the invocation, before the football game case was that it had a history, and the history was that the schoolappointed a student chaplain and that student chaplain led the fans, in that case, in prayer. And when they changed that because of concern about constitutionality, the court said, no, this is still part and parcel of the same school-initiated, school-sponsored prayer. You have a situation where it’s not school-initiated, it’s school-sponsored, but it’s the students themselves or groups of students themselves who are engaging in prayer or religious activity. That’s an entirely different question. (END VIDEOTAPE)

STEPHANOPOULOS: And on the final day of that 2000 term, the court struck down a state ban on late-term abortions, an issue certain to confront the next Supreme Court. (BEGIN VIDEOTAPE)

(UNKNOWN): Is the basic right to an abortion pretty much sacrosanct at this point?

J. ROBERTS: Well, the partial-birth abortion case, one thing that did happen is that Justice Kennedy dissented from that ruling. Of course, he was part of the Casey triumvirate back in ‘92.

(UNKNOWN): Right. J. ROBERTS: He saw a distinction between the procedure in this case and the basic right to an abortion in Roe v. Wade. And Justice O’Connor, in her concurring opinion, basically laid out a road map and said if states want to pass laws banning what people call partial-birth abortion, here’s what you have to do to pass constitutional muster. So I don’t think that debate is over. I think it’s just starting a new round.

(UNKNOWN): What about the general debate? Because Vice President Gore and other abortion right supporters point out that yesterday’s vote was 5 to 4, and they’re basically saying that the entire right to an abortion, Roe V. Wade itself, is only hanging by a thread. Is that true?

J. ROBERTS: Oh, I don’t think that’s right, and you have to read — just read
Justice Kennedy’s opinion to understand that. What he’s saying is, This is different from the basic right to an abortion, and, therefore, I’m on the dissent. That doesn’t suggest that he’s going to abandon his position, which has been supporting the basic right to an abortion. So I think it’s — that right is protected right now by more than just one vote.

(UNKNOWN): Is the conservative counter-revolution on the Supreme Court over now, or can they regain momentum? J. ROBERTS: Well, I think a lot will depend on new appointments and the types of cases that do come before the court. But first and foremost, you know, this is a pragmatic court. Some of the defeats may not be as serious as they look. The Miranda case, for example, that really wasn’t a vote by all of these justices in favor of Miranda; it was more a stare decisis. This has been part of our law for a long time. We’re not going to unsettle it. So the defeat for the conservatives this year, although I think they’re real, is not as extreme as you might imagine.

(UNKNOWN): Any significant conservative victories, from your point of view, in these various rulings, some of things you might feel you did win?

J. ROBERTS: Well, there were some important victories in the First Amendment area, for example. The Boy Scouts case: People have the right to form groups like the Boy Scouts to promote particular values, and they can exclude people who don’t share those values. The same reasoning behind the California Democratic Party case in California. You may remember they had an open-blanket primary; anybody could vote. Last time people were worried, a lot of Democrats in the Republican primary voting for John McCain, does that throw it off? Here they said California can’t force the parties to allow anybody to vote.

(UNKNOWN): You said that a lot of these issues will depend on the future nominations to the court. How much difference would a Bush presidency make vis-a-vis a Gore presidency?

J. ROBERTS: Well, you know, it’s hard to tell because you never know if the nominees that they select are going to carry out any particular point of view or if, as has been the case with many nominees in the past, they chart a different course. But the fact of the matter is we do have a court with several members who have served for a long time and who would probably be expected to step down.

(UNKNOWN): Justice Stevens has been one of the more liberal members of the court, is, I think, the oldest member of the court, and there’s some others also, Justice O’Connor, maybe Justice Rehnquist.

J. ROBERTS: Sure. And depending upon which ones of those step down and who is appointed in their place, it could well make a difference. (END VIDEOTAPE)

STEPHANOPOULOS: And he’s the one who could make the difference. And for more on this, I’m now joined by two of our John Roberts experts: our White House correspondent Terry Moran and Linda Douglass, our Capitol Hill correspondent. And, Terry, let me begin with you. It’s just fascinating, after seeing all these photo-ops, to actually see John Roberts answering questions on specific cases and issues. What do you think this reveals about him?

MORAN: Well, it shows for the White House certainly, which I cover, they like what they see in this guy, and you can see why. He comes off as a very earnest,
very sincere, very judicious kind of person. He seems like the kind of guy who, if you walked into his courtroom, you’d get a fair shot from him.

MORAN: That said, there’s no question, listening to this man, that he is a conservative. He expressed disappointment about the way the Supreme Court had decided cases on abortion, school prayer, even Miranda. So it is clear where he is coming from, but the kind of demeanor we just saw there is precisely one of the reasons the president picked him.

STEPHANOPOULOS: Linda, what pops out at you?

LINDA DOUGLASS, ABC NEWS: Well, I think there was something in here for everyone. First of all, for the conservatives, he made it very clear that the current court is not conservative enough for him. He made it very clear that he considered it a defeat when Scalia and Thomas were on the losing side. That was very important for conservatives to hear. On the other hand, he talked about a basic right to abortion. He kept repeating that over and over again. Didn’t say that he agreed with it, but he certainly called it a basic right to abortion. So that’s why he is very, very careful in the way that he expresses himself in creating a certain enigmatic view of himself.

STEPHANOPOULOS: And, Linda, I wonder what you think, how Democrats and pro-choice groups might react to that. They’ve been trying to actually raise fears about John Roberts. What do you think they’re going to do with these statements?

DOUGLASS: Well, they will continue to point out the things that he’s said in his writings in the past, when he was representing the government, that Roe v. Wade should be overturned again. That was the government’s position at the time.

He was simply, he would say, acting as a government lawyer. He also made it very clear, though, that he thought there was room for overturning what’s called partial-birth abortion. That is something that is very important to the abortion-right. He also made it very clear, though, that he thought there was room for overturning what’s called partial-birth abortion. That is something that is very important to the abortion-right.

The Fire Next Time


Though the Left will scuff and kick all the way to the Senate vote, they know that John Roberts is going to be confirmed as an associate justice of the Supreme Court sometime before the first Monday in October. Most liberals are cautiously optimistic that Roberts will be much more like O’Connor than Scalia. For them, it is an encouraging thought. They are glad, too, that President Bush did not really put it to them this time — as they would have felt if the nominee were Edith Jones or Mike Luttig.

Liberals are playing for next time, for the battle over Rehnquist’s successor, for Stevens’s, and on down the line. That is mainly why they are laboring so to define “mainstream” conservatism (read: acceptable to liberals), establish proper questioning etiquette, stake their claim to full disclosure of a nominee’s papers, etc. (There are other reasons, of course, having to do with jockeying for political position and fundraising.)

All this is pretty clear. What’s not so clear is whether conservatives are being as savvy. Yes, conservatives have to parry every thrust against Roberts. Yes, they must keep beating the drums of grassroots support for him. But the outcome is not in doubt. John Roberts is indeed going to be on the bench come October 3rd. Conservatives should also be playing mainly for next time. Even for the time when there is a Democratic president.

Re: Anti-Federalist Society


Thanks, Kathryn, for the link to that silly little letter by Arthur Schlesinger, Jr. about the Federalist Society (for the record, I am not now and never have been a member, nor have I attended any of their functions). He writes that its members display a “shocking ignorance of American history,” and here’s his entire reason why:

“The Federalist Party, the party of Washington, Adams and Hamilton, stood for a strong central government. The Federalist Society stands for negative government and states’ rights. If its members were honest, they would call themselves, in the terms of the 1790’s, the Anti-Federalist Society.”

Well, now. The Federalist Society uses as its logo a silhouette of James Madison, often accompanied by a quotation from one of Madison’s essays in–you guessed it–The Federalist. Clearly the Society’s focus is on the use of the name in association with advocacy of the Constitution as such.

As for the period of the 1790s, by then there were, properly speaking, no such persons as Anti-Federalists, that name being accurate only while the question of the Constitution’s ratification was still pending and for a very brief time thereafter. In the split that took place between Adams and Hamilton on one side and Jefferson and Madison on the other during the 1790s (Washington belonging to neither party), the former claimed the name “Federalists” and the latter the name “Republicans” (though their party was the lineal ancestor of today’s Democrats).

And I don’t know where Schlesinger gets the idea that members of the Federalist Society are uniformly “for negative government and states’ rights.” I have met members who are staunch Hamiltonians on such questions. It’s a pretty diverse crowd, united by little else than a rejection of the doctrine of the “living Constitution.”

Here endeth the lesson, Professor Schlesinger.

Roberts Likes Violence


That’s the latest message from NARAL, in a new commercial.

Eyes Are On


Anti-Federalist Society


Arthur Schlesinger Jr. takes aim at FedSoc in a letter to the NYTimes.

He Sounds Like a Member of a Cult


Just the latest Left ranting:

Ralph G. Neas, president of the liberal People for the American Way, said: “With every day that passes, it becomes more clear that confirming John Roberts would mean replacing Sandra Day O’Connor with someone who viewed her as an obstacle to the ultra-conservative movement, which he had helped lead when he was with the Reagan and first Bush administration.” Neas’s organization has not declared outright opposition to Roberts, he said, but views the nomination with increased concern in light of recent revelations about his role.

Cornyn on Abortion & Roberts


In the Philly Inquirer (whispering in a certain chairman’s ear?):

But if it is improper to demand an answer from Roberts about Roe, it is doubly improper to do what some senators have now said they intend to do: vote against him if he does not vow to uphold it. They have established a
litmus test that the ethical rules forbid Judge Roberts to satisfy, even if he wanted to. Erecting conditions to confirmation that Judge Roberts is ethically forbidden to satisfy is not the sort of fair treatment of him that senators from both political parties have pledged to ensure.

I need a new dictionary . .


. . . when I read Professor David Strauss of the University of Chicago Law School, in today’s Chicago Tribune, write that Justices “Kennedy and O’Connor are solidly conservative, and Stevens and Souter are moderate conservatives.” I’d like to say that this remark looks better in its original context, but it really doesn’t, very much.



Feddie and Me Update


Feddie has a rejoinder to my response to his criticism of my argument about “his” Judge Manion. How much longer such a game of blog-minton can go on, I don’t know, but I’ll stop it on my end with this reply.

First, Feddie elaborates on his objection to the “tenor” of my critique of Manion’s opinion, but all he calls attention to is some fairly direct language on my part about the qualities of Manion’s argument–nothing ad hominem, which is more than I can say about Feddie’s treatment of me, alas. (What do they teach in law schools these days?)

Second, he continues to insist that because Muth was a habeas case, I misrepresented its meaning. If Feddie wants to pretend that Muth did not actually decide anything about the merits of the question whether Lawrence renders incest prohibitions unconstitutional, he is free to live in that alternate universe. What he quotes from Manion’s opinion proves nothing whatever on his side of that issue. Interested readers may see for themselves by downloading the opinion here (PDF file). I will simply stand by my previous, quite unrefuted arguments.

The Best Defense. . .


Here’s an excellent press release from Sen. Kay Bailey Hutchison (R., Tex.). We take it as an encouraging sign, that this time around Republicans aren’t going to allow double standards and personal attacks to impeach their nominee.

Statement of Sen. Kay Bailey Hutchison on Supreme Court Nominee Coverage

WASHINGTON – U.S. Senator Kay Bailey Hutchison (R-TX), Vice Chairman of the Senate Republican Conference, today issued the following statement after the New York Times confirmed it was looking into adoption records of U.S. Supreme Court nominee John Roberts:

“I was appalled to learn that reporters for the New York Times had started an investigation into the adoption records of U.S. Supreme Court nominee John Roberts and his wife. Simple decency dictates that some boundaries should be placed on inquiries into the private lives of public figures by interest groups and the news media.

“In my view, this inquiry by the Times — no matter how preliminary the newspaper now says it was — steps over that boundary line. I note the paper initially claimed this misstep was inadvertent. But it has now been reported that the newspaper consulted its lawyers to determine ways to unseal court adoption records of the Roberts family. In my view, this is reprehensible.

“This is not the first time, in the period since Judge Roberts was nominated by President Bush, in which publications have gone over the line in their coverage. I was disgusted by a half-page Washington Post story two weeks ago deriding the apparel worn by the Roberts children when their father’s nomination was announced at the White House. The Los Angeles Times ran a lengthy story examining private activities of Mrs. Roberts that were largely irrelevant to her husband’s nomination.

“I hope everyone involved in the confirmation process will take a deep breath and consider carefully the fine line between legitimate background inquiries and invasion of privacy in such cases. In the meantime, I will encourage the Congressional Coalition on Adoption, of which I’m a member, to take a position opposing inquiries such as those started by the New York Times.”


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