Bench Memos

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“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.

Genius Advice


David Brooks has some sound judge-picking advice for President Bush:
Ignore the silly calls for non-lawyers and politicos, and don’t worry about historic “firsts,” preserving “balance,” or “identity politics tokenism.”
Instead, Brooks urges, pick a genius. (Not just any genius, of course. Holmes was a genius, but he should not be the model for a Bush nominee.)

Brooks mentions two “powerhouses”: Harvard’s Mary Ann Glendon and Judge Michael McConnell. Both of these lawyers are top-flight scholars and world-class decent people. I was particularly pleased to read a concise statement — in the New York Times, of all places — of Judge McConnell’s invaluable contribution to the debate over the place of religion in public life and over the real, religious-freedom-protecting meaning of church-state separation.

Others have also made Brooks’s point, which is, in a nutshell: The nominee should be the best available athlete, period. After all, Supreme Court Justices and their work really matter; nominations are for the good of the law and the preservation of the Constitution, not to increase turnout in swing districts or certain ethnic communities. My impression is that the President has the votes to get his nominee confirmed; he does not to settle for less or try to find vanilla, viewless unknowns. There are all-stars on the President’s
lists: McConnell, John Roberts, Michael Luttig, and others. I hope the President is looking for a Jordan, and not (no offense!) a Will Perdue or a Luc Longley.

Calming Things Down


Excellent editorials like this one from the Chicago Tribune, calmly explaining the landscape on abortion rights, are the antidote to the ugly battle brewing over the Supreme Court. More please!


Rehnquist Has Been Hospitalized


A Minor Point


Michael Ledeen has another wonderful piece on NRO today, marred only slightly by a misattribution in his final paragraph. He writes: “Justice Holmes taught us that the Constitution is not a suicide pact, and that no one has the right to scream ‘fire’ in a crowded theater.” Oliver Wendell Holmes, Jr. did say the second thing mentioned here, but not the first. That was justice Robert H. Jackson, recently back from prosecuting Nazis at Nuremberg, who observed in 1947 that we should never treat the Bill of Rights as a “suicide pact.”

What Will Rehnquist Do?


I see two equally plausible–and conflicting–accounts of what is going on:

One theory is that Rehnquist has already communicated to the White House that he will resign soon and that he has agreed to defer his formal resignation until the president is ready to nominate his and O’Connor’s successors. There is no real evidence to support this theory, but it would explain why, contrary to what veterans of the White House Counsel’s office expected, O’Connor’s successor was not named immediately. It would also explain the third-hand rumors that folks at the White House fully expect Rehnquist to resign.

A competing theory is that Rehnquist has decided to continue for at least another year. Under this theory, his health would be stronger than some have reported, and he would have figured that two vacancies at the same time disserves the interests of the Court. One other note: A Supreme Court history buff like Rehnquist would surely be aware that sometime next year (on May 21, 2006, if my quick calculation is correct) he will surpass Chief Justice Marshall’s tenure on the Court.

Marshall was chief for his entire tenure (34 years, 156 days, I think). Rehnquist joined the Court in mid-December 1971 and has been chief for the last 19 years. According to one website, William O. Douglas holds the all-time record of 36 years, 209 days on the Court.

Are You an Originalist?


Take my simple test and find out.

Chairman McCain!


A little bit of John McCain in Arlen Specter would be apreciated right now. Just echo these words, Senator Specter (via Drudge):

Sen. McCain [R-AZ] Strong Words On Supreme Ct Nomination at Dallas Fundraiser: ‘During the campaign, President Bush said he will appoint judges who will strictly interpret the constitution… thinking anything else is either amnesia or ignorance… elections have consequences… whomever he nominates deserves an up or down vote and no filibuster… and an up or down vote is what we will have’…

George Mitchell Back into the Fray?


Two points of interest in Business Week’s Supreme Court story:

1) Former Senate majority leader George Mitchell (D., Me.) may take the lead for Democrats in opposing the president’s Supreme Court nominee. Mitchell is currently chairman of the board at Walt Disney, chairman of the law firm DLA Piper Rudnick Gray Cary, and a member of Staples’ board of directors. How do these companies feel about Mitchell joining the left side of this debate?

2) Democratic strategist Steve Elmendorf is refreshingly candid about liberal groups’ interest in an ugly confirmation battle: “They’re all trying to raise money. The groups have an interest in having a fight. If there’s no fight, there’s no money.” When will the mainstream press report on the parochial motives of the liberal interest groups attacks on constitutionalist nominees?

Senate & Consultation


From a Cornyn-office e-mail:

U.S. Sen. Charles Schumer (D-N.Y.) took to the floor this morning calling for a “summit” between the President and Senators “and have a real back-and-forth” to ensure a consensus nominee. So I tried to find a similar speech from Sen. Schumer’s colleagues during the Supreme Court vacancies that were later filled by Justices Ginsburg and Breyer. So far, I haven’t found any. There were no “summits” to pick those nominees. President Clinton did not consult 60 Senators on Breyer and Ginsburg—as President Bush has already done during the current nomination process. The consultation efforts by President Bush are unprecedented and welcome, but not mandated by the Constitution. As Sen. Schumer, himself, pointed out in his floor speech, “the decision, of course, by the Constitution is solely his (the President’s).”

The truth is that the Constitution imposes no obligation upon the President to seek advice prior to announcing a nomination, nor does it confer any responsibility or authority on individual Senators to recommend nominees to the Supreme Court. The President’s outreach is to be commended—in fact senior members of the Democrat party have already praised his unprecedented efforts—but consultation does not equal co-nomination.

The President nominates, the Senate’s role is to “advise and consent” on that nomination—after the nominee has been selected by the President. As Sen. Patrick Leahy (D-Vt.) said Monday, “I accept the president’s offer in good faith. I told him that. And I told him I would be glad to discuss some names with him. And realize, of course, it’s his decision in the end…”

Consultation: Great Opening


From the Washington Times:

Hours after learning that Supreme Court Justice Sandra Day O’Connor would
retire, Sen. Patrick J. Leahy of Vermont held a press conference and talked
about the importance of President Bush’s consulting Democrats before naming
her replacement.

“Speaking of the Constitution — excuse me just a moment,” the top Democrat
on the Senate Judiciary Committee was saying when he got interrupted by a
staffer for an important phone call.

It was Mr. Bush on the line to discuss the new Supreme Court opening.

Mr. Leahy and other top Senate Democrats, who will gather at the White House
today for discussions about an O’Connor replacement, have said Mr. Bush is
off to a good start consulting them.

Thank You, Dave!


Some of Dave Winston’s “Bush Earned the Right To Pick the Next Justice, Not the Democrats” in Roll Call today (subscribers only):

At the end of the film “Saving Private Ryan,” Tom Hanks’ character, Capt.
Miller, lies mortally wounded with many of his platoon already dead, having
sacrificed themselves for “a cause greater than themselves.” In his last
breath, Miller tells the young soldier, for whom so many have given their
lives, including his own, “Earn this.”

There’s a lesson in that challenge that Democrats seem to have forgotten as
they clamor for “joint power” in selecting the next Supreme Court justice.
In all of their chest-beating calls for “moderation” and “consensus” and
“cooperation,” Democrats, led by Sens. Edward Kennedy (Mass.) and Charles
Schumer (N.Y.), are conveniently ignoring the one stumbling block to their
desire for presidential power sharing — those pesky democratic elections
when a president and his party earn the right to govern through majority
rule and, in so doing, to also choose the nation’s judicial nominees.

Harry Reid’s Advice to the President


More from the outside-the-White House briefing:

LEAHY: If I could just follow up on that, Arlen, I remember having a conversation with President Reagan when he was asking some of us what we thought about the Supreme Court; a similar one with President Clinton. In both cases, I said, Consider somebody outside the judicial monastery.

I’ve talked, as each of us has, with a number of the current justices. I know they see a number of benefits that could come to having somebody from outside the judicial monastery. President Clinton actually offered it to somebody who was not a judge, and that person decided not to accept it. And that’s one consideration, and we discussed that thoroughly.

I see this meeting as a first step in the consulting. I think we can have, and the president can certainly nominate somebody, who would unite us and not divide us, somebody who would go through with a vast majority of both Republicans and Democrats voting for him or her.

That would be a great thing to do for the integrity of the court, for the comfort level of the country, because, after all, the court is there for every one of 280 million Americans; it’s not there for any special interest group for the right or the left. And that, I would hope, could be done.

This is an important decision and it may be one of the first of many on this court. I would hope that when we would go, first, with a touchstone that the Supreme Court is there to protect the rights of all Americans. It’s the ultimate check and balance. And then let’s seek somebody — let’s seek somebody that would unite us, all of us, in the Senate first and foremost, but then in the American public, in such a selection.

I think that it can be done. I hope that it will be done.

What Chairman Specter Said


As released by the RNC:

SPECTER: We’re following the Constitution, which is always a good start — advice and consent. [Someone doesn't read NRO...or the Constitution.] And I think this morning was very productive with the advice part, with the president inviting us in very, very promptly to talk about the entire process.

The scheduling is a matter which we took up in some detail. And Senator Leahy and I have worked very coordinately and we intend to continue that.

I’m flexible. There are some limitations as to August. But as Senator Frist has said, our duty is to have a justice in place by the first Monday in October, when the court starts its new term. And the ending point is that date, and the beginning point is when the president makes the selection.

We want to see to it that we don’t have somebody so-called hanging out there too long.

I think that the word ought to go out that the special interest groups vastly overstate their influence; that what they’re doing is counterproductive and a lot of the times insulting as they gear up these big money-wasting apparatuses.

When we go back to the 1987 — and we hear about that all the time, the Judge Bork proceedings — the interest groups did not defeat Judge Bork — just didn’t happen. It was his judicial philosophy. So that the extent we can turn that off, the whole process is much, much better off.

Characteristically, the hearings start in September. We’re going to be consulting really with the leader, Senator Frist, as to whether we want to pursue August. I think that it’s difficult, but it’s possible. And we’re retaining some flexibility on that subject.

One other topic which came up which I think is worthy of mention and doesn’t reveal too much, and that is the sense — and I’ll attribute this to myself, as a starter — to look for somebody as a nominee that does not come out of the traditional circuit courts; that we have, if not a monolithic approach, very, very close to that, with now Justice O’Connor having been in the state legislature, and the chief justice having been in the Justice Department, and everybody else is from the circuit courts, that it would be good to have some diversity.

SPECTER: As one commentator mentioned, Brown v. Board was decided by a court which pulled the country together, and had three ex-senators on it; might even had four senators on it. Four of us here today; who could tell about something like that?

But that was one item which the president listened. The president, of course, speaks for himself, but it was a good meeting and, as already indicated, a good start.

Specter Watch


The president met with Senate leaders at the White House this morning. A concerned court watcher (of course, these days, who isn’t?!) relays the scene via a cable news shot:

It was in remarks right outside the WH flanked by Leahy, Frist & Reid, right after they had breakfast w/ POTUS re Supremes. Specter said they had talked about the importance of a candidate who would command lots of support. He harked back to 1987 and the interest groups he loves to talk about so much, and he said they were not the ones who defeated the Bork nomination. It was, he said, JUDICIAL PHILOSOPHY that killed the Bork nomination.

Not encouraging.

Scalia for Chief


On Consultation


From today’s White House press briefing:

Let me back up, though. You brought up the Supreme Court, and I would like to update you, in terms of where we are in terms of consultations with the Senate, because the White House consultations have been wide and deep with the United States Senate. I think you heard Senator Hatch yesterday talk about how, in his 29 years in the United States Senate, he has not seen anything like this when it comes to the level of consultation that is going on. It is unprecedented, in his words, and he’s certainly been around the Senate for a long time to see the type of consultations that go on.

But we have reached out to more than 60 senators now, and we have actually consulted with most of those. We are continuing those outreach calls and meetings to listen to what senators have to say and hear what their views are. The President –

Q Did you try to reach all the senators?

MR. McCLELLAN: The President has reached out, himself. The President looks forward to meeting tomorrow with four distinguished leaders in the Senate. He will be listening to what their views are. The President is not prejudging anything. He wants to hear what their views are and hear what they have to say as we move forward on a Supreme Court nominee. The President –

Q Does he want to hear names, Scott?

MR. McCLELLAN: The President welcomes people suggesting names. That’s part of the consultation process. But not only are we going to consult before the nomination is made, but we’ll continue to consult once the nomination is made.

We’ve also consulted with more than half of the Democratic conference in the United States Senate. We’ve spoken with every member of the Senate Judiciary Committee. And we are continuing that outreach as we speak. A number of White House staffers have been reaching out to individual members, and the President is going to be sitting down and meeting with those four leaders tomorrow.

Q What does he think of Specter — what does he think of Specter suggesting O’Connor as Chief?

MR. McCLELLAN: Look, Les, there are going to be a lot of suggestions made. I’m just not going to get into speculating about potential nominees. The President takes this responsibility very seriously. And that’s why he is going through a deliberate and thorough process. That’s why he has instructed us to reach out to senators and get their views and hear what they have to say about a potential nominee.

The President hopes that we can move forward in a dignified and civilized way. You heard him express that. It’s important to elevate the discourse as we move forward. The American people want this nomination process to be something that we can all be proud of. And the President is going to select the nominee who meets the criteria that he outlined — that is someone of high intellect, someone of integrity, someone who — someone of great legal ability and someone who will faithfully interpret our Constitution and our laws and not try to make law from the bench.

RE: senators


My correspondent replies: “A hard time? Of course. But filibuster a former colleague? I just don’t see it. The Senate ‘institutionalists’ like Sen. Byrd wouldn’t do it.”


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