Bench Memos

NRO’s home for judicial news and analysis.

“John G. Roberts is the face of today’s governing conservatism.”


Feeble, Laughable PFAW—Part V


PFAW also attacks Judge Roberts’s dissent from the denial of rehearing en banc in Rancho Viejo v. Norton, which presented the question whether the Endangered Species Act could apply to (in Roberts’s witty phrasing) “the taking of a hapless toad that, for reasons of its own, lives its entire life in California.” Roberts pointed out how the panel’s opinion “seem[ed] inconsistent” with the Supreme Court’s Commerce Clause decisions in Lopez and Morrison. He explained that en banc review was appropriate because the panel’s approach conflicted with a Fifth Circuit opinion. He also pointed out that en banc review would “afford the opportunity to consider alternative grounds for sustaining application of the Act that may be more consistent with Supreme Court precedent.”

None of the above is evident from PFAW’s tendentious account. In claiming that Roberts’s dissent “strongly suggested that he thought it would be unconstitutional to apply the Endangered Species Act in this case,” PFAW completely ignores Roberts’s suggestion that alternative grounds might well be available. Rather than present, much less address, Roberts’s arguments, PFAW claims that Roberts’s opinion indicates that he would “severely limit the authority of Congress to protect environmental quality as well as the rights and interests of ordinary Americans.” Apart from the fact that most ordinary Americans, last I checked, are not arroyo toads, PFAW’s real dispute is with the Supreme Court’s decisions in Lopez and Morrison (opinions that O’Connor joined). PFAW cannot fairly fault a circuit judge for seeking to ensure that his circuit follows Supreme Court precedent, and PFAW would surely fault a circuit judge for failing to do so when PFAW favored the applicable precedent.


Feeble, Laughable PFAW—Part IV


I’ve just read the third of the five judicial opinions of Judge Roberts that PFAW attacks, and PFAW’s batting average remains at .000.

In objecting to Judge Roberts’s majority opinion in United States ex rel. Totten v. Bombardier Corp. PFAW professes a concern for “protecting the federal Treasury.” This concern appears to be newfound, as it obviously did not animate PFAW’s immediately preceding discussion of the Taucher case. Nor is there any evidence that this has previously been a concern of PFAW’s. A cynic might be pardoned for thinking PFAW’s concern insincere and contrived.

In any event, PFAW’s reading of this case is highly distorted. Judge Roberts, joined by Clinton appointee Judith Rogers, ruled that a provision of the False Claims Act that provides that imposes liability on any person who submits a false claim “to an officer or employee of the United States Government” means, lo and behold, that liability attaches only if a false claim is submitted “to an officer or employee of the United States Government,” not if it is submitted to Amtrak. Applying Supreme Court precedent, Roberts “adhere[d] to the plain language of the statute, rather than invoke the legislative history to embrace a reading at odds with the statute.”

Judge Garland, in dissent, did not dispute the majority’s reading of this provision but instead would have relied on a different provision of the False Claims Act (subsection (a)(2)) to reach a different result. Judge Roberts pointed out that in the six-year history of the case none of the parties had ever argued that subsection (a)(2) was applicable and that arguments not made on appeal are ordinarily deemed waived. Judge Roberts (again, joined in the entirety of his opinion by Judge Rogers) further interpreted subsection (a)(2), which attaches liability where a person makes a false statement to get a false claim “paid or approved by the Government,” to require, believe it or not, that the claim have been paid or approved by the Government.

I Agree with the Guardian! (Well, Kinda, Sorta)


I’d like to know where John Roberts falls on this, too! From the Guardian’s top editorial today:

Yet the US, in this as in other respects, remains neuralgic about drawing on international experience. Justice Scalia, in particular, seeks to cut the US off entirely from the 21st-century global legal conversation. Justice O’Connor, on more than one occasion, argued the case for engagement. One of the acid tests for Judge Roberts will be whether he chooses to help Americans join that conversation or to block their ears to what the rest of the world is saying.

Ramesh vs. Ann Coulter


Here. He’s got a Corner Court Watch going on, so be sure you’re reading both Bench Memos and Da Corner regularly.


Phew! Okay, I’m Back in My Comfort Zone with Roberts!


From: Ellie Smeal
Sent: Wednesday, July 20, 2005 10:34 PM
To: Kathryn Lopez
Subject: Urgent Bulletin: Bush Nominates Far-Right Judge to Supreme Court

Dear Feminist Activists,

President Bush has nominated an ultra-conservative judge to take Sandra Day O’Connor’s seat on the Supreme Court.

The fight to save the Supreme Court must begin now. The Feminist Majority is opposing John Roberts for the Supreme Court.

Roberts, a judge on the DC Circuit Court of Appeals, has a record that indicates he will be a solid vote against women’s rights and Roe v. Wade. As Deputy Solicitor General, Roberts argued against Roe v. Wade, and also argued on behalf of Operation Rescue, an extreme anti-abortion group, in Bray v. Alexandria. Those of us who defend clinics know that the result of the pro-choice loss in Bray v. Alexandria was increased violence at clinics. In private practice, Roberts argued against affirmative action.

The Feminist Majority will urge every Senator who supports women’s rights to thoroughly question Roberts on his views on fundamental women’s rights, civil rights, and reproductive rights issues. If Roberts is to be confirmed by Senators, he must say where he stands on Roe, the right to privacy, women’s rights, and civil rights. The burden is on him.

The opposition forces behind President Bush have already raised millions of dollars to support Bush’s nominee for the Supreme Court. Just one such right-wing advocacy organization, Progress for America, has raised $18 million already to fight for President Bush’s Supreme Court nominees. Another such organization, the Judicial Confirmation Network, has raised $3 million for its media campaign to fight any attempt to filibuster a Supreme Court nominee. Progress for America has already launched a website in support of Roberts.

Let there be no mistake about it. The case most likely to be reversed or pivotal in the coming Supreme Court nomination fight is Roe v. Wade. But even some of our progressive friends tend to marginalize the abortion issue. We must rally the millions of women and men who support reproductive rights if Roe is to be saved.

The Feminist Majority must be strong enough to ensure that the rights of women are a central part of the Supreme Court debate. Please make a special emergency contribution to the Feminist Majority’s Save Roe Campaign today. We need money for Internet banner ads, grassroots organizing kits, field organizers, and a massive PR operation.

The Feminist Majority will continue to examine Roberts’ record, and it will demand that Senators not confirm Roberts unless he makes clear that he will not reverse Roe and civil rights for women, minorities, and the disabled.

Women, who have the most to lose, must be the strongest voice in the debate over the Supreme Court. This time, for once, we will not be ignored.

Please help us to mount a campaign worthy of the rights of women.

Together, we can make a difference.

For Women’s Lives,
Eleanor Smeal
Feminist Majority

It’s Still Okay to Like John Roberts, Right? Despite?


”[John Roberts] is not an ideologue or a right-wing fundamentalist kind of guy, which we all feared Bush would nominate,” said James McNaughton, a retired foreign service officer and a neighbor in Roberts’s suburban Washington neighborhood. ”He’s a very normal American dad — maybe that’s getting a little scarcer than it used to be.”
Remember this normal America dadwas considered a “right-wing fundamentalist kinda of guy.

You Don’t Say


John Roberts and Joseph Story


Over in The Corner, Ramesh Ponnuru has quoted a sentence he considers mildly alarming from Judge Roberts’ 2003 confirmation testimony: “I don’t necessarily think that it’s the best approach to have an all-encompassing philosophy” of judging. I actually don’t find this particularly alarming, because I take it to be a knock against “theory” or “theorizing.” There are two ways to eschew “theories of judging.” One is the way chosen by Sandra Day O’Connor, sometimes flatteringly called pragmatism, otherwise known as incoherence. The other way is to devote oneself utterly to discerning what theory the Constitution has of itself. As Joseph Story wisely wrote in his Commentaries in 1833, while simultaneously serving on the Supreme Court and teaching at Roberts’ alma mater:

“Constitutions are not designed for metaphysical or logical subtleties, for niceties of expression, for critical propriety, for elaborate shades of meaning, or for the exercise of philosophical acuteness, or juridical research. The are instruments of a practical nature . . . Men of ingenious and subtle minds, who seek for symmetry and harmony in language, having found in the constitution a word used in some sense, which falls in with their favorite theory of interpreting it, have made that the standard, by which to measure its use in every other part of the instrument. They have thus stretched it, as it were, on the bed of Procrustes, lopping off its meaning, when it seemed too large for their purposes, and extending it, when it seemed too short.”

If Roberts approaches the Constitution in the “anti-theoretical” spirit of Story–which was decidedly not that of O’Connor–that will be good enough for me.



“I don’t think the American people are going to put up with any more crap from the Judiciary Committee.”

–Senator Hatch, last night, on Dem oppposition to Judge Roberts

Greenhouse Gas Cloud


I see Linda Greenhouse’s front-page NYT “analysis” piece from yesterday a little differently from the way Ramesh Ponnuru and Stanley Kurtz see it. Yes, it’s an unconscionably opinionated piece for the news pages, even under the rubric of “analysis,” as Ramesh notes. And yes, it may have a “this is the best we can hope for from Bush” air about it, as Stanley says. But the real import of the article is that it is the opening salvo in a campaign of seduction. Perhaps Linda Greenhouse has begun to believe her own press–more precisely, what is said about her on the right–and thinks that all she has to do is flirt with John Roberts about all the nice things she might one day say about him in the New York Times, and maybe he will “grow” in office the way some other justices have done. This is the fabled “Greenhouse effect,” and this is Linda’ opening bid to work its magic once again:

“Don’t be like those icky sticks-in-the-mud, those angry little men Scalia and Thomas, Johnny. Be a real man, a big man, a man not afraid to be a little like a woman, a little like Sandra Day O’Connor. If you truly love the Court as an institution, John, as you suggested you did last night, prove it, big fella. If you love the Court, you can change for it, move where it’s moving, not fight the Zeitgeist. You are getting very sleepy . . .”

John Roberts strikes me as a wide-awake fellow with his feet planted on terra firma. I believe he can hold his breath whenever the Greenhouse Gas Cloud comes his way.

Feeble, Laughable PFAW—Part III


Another of the grand total of five judicial opinions of Judge Roberts that PFAW attacks is his ruling in Taucher v. Brown-Hruska that denied an award of attorney’s fees to plaintiffs in a case brought against the Commodity Futures Trading Commission. You’ll have to try really hard to stay awake as I describe the severe threat to American liberties that PFAW pretends to see in this case.

In order to combat fraudulent practices affecting the commodity futures market, Congress enacted the Commodity Exchange Act. That Act makes it unlawful for any commodity trading adviser to use any means of interstate commerce in connection with its business unless it first registers under the Act. Certain publishers who were commodity trading advisers challenged the registration requirement as violative of the First Amendment. Reasoning from a 1945 concurring opinion by Justice Jackson and a 1985 concurring opinion by Justice White, the district court determined that the registration requirement was a regulation of the publishers’ speech rather than a regulation of professional practice and that it was an unconstitutional prior restraint.

After the CFTC abandoned its appeal, the plaintiff publishers sought to recover attorney’s fees under a statute that awards attorney’s fees to a party prevailing against the government unless the government’s losing legal position is “substantially justified.” A magistrate determined that it was “so self-evident and obvious” that the registration requirement was not regulation of professional practice that the CFTC’s position was not “substantially justified.” It therefore awarded attorney’s fees.

Judge Roberts’s majority opinion rejected the magistrate’s determination that the CFTC’s position was not “substantially justified.” Judge Roberts noted, among other things, that the district court’s merits ruling had relied on two concurring opinions (as opposed to established Supreme Court precedent) and that the discussions in those very opinions belied the magistrate’s assertion that the issue was “self-evident and obvious.” Judge Edwards, in dissent, believed that the abuse-of-discretion standard applicable to review of the fee award required that the majority defer to the magistrate’s determination.

From this highly factbound dispute over the proper application of the abuse-of-discretion standard, PFAW would evidently have us believe that Judge Roberts’s ruling somehow undermines a fee award statute that “is important in opening access to the courts to persons who might otherwise not be able to challenge unlawful or unconstitutional government action.” Americans may sleep safely tonight knowing that PFAW’s contention is hogwash.

Flashback: The Left that Cried Wolf


Point of Law on Roberts


Ted Frank and Walter Olson comment on John Roberts and business litigation here and here.

More Silly Women Nonsense



Salazar letter states missed opportunity to, “…create an America that includes women at all levels of our nation’s government.”

WASHINGTON, D.C. – United States Senator Ken Salazar released the following letter expressing disappointment in the President’s decision not to nominate a woman to the Supeme Court to fill retiring Justice Sandra Day O’Connor.

Senator Salazar also sent the letter to Senators Arlen Specter (R-PA) and Patrick Leahy (D-VT). The letter Senator Salazar sent is included below.

July 20, 2005

Dear President Bush:

I do not know yet how I will vote on the confirmation of Judge John G. Roberts Jr. I will honor the processes of the Senate in considering his nomination. The fact you have not selected a distinguished woman in the mold of Justice Sandra Day O’Connor is not a reason for disqualification. However, I want to express my disappointment that you have missed an opportunity to help create an America that includes women at all levels of our nation’s government.

If your nominee to the United States Supreme Court is confirmed, the face of the United States Supreme Court, with nine justices, will have only one woman. And in an America that has struggled over her history to include women, I do not believe this is a healthy portrayal of the kind of America we should be building.

Twenty-four years ago, President Ronald Reagan appointed Sandra Day O’Connor as the first woman justice of the United States Supreme Court. She served in that role with distinction. Justice O’Connor’s appointment created a milestone in history that was the culmination of the work and struggles of men and women over centuries to ensure that women received fair and equal treatment in America. As we all well know, women were not granted even the right to vote in America until the ratification of the 19th Amendment in 1920.

You and I both have two daughters. The profound message we should be giving to them is that their gender creates no limitations for them to live up to their God-given potential. Yet, I fear that with the loss of Justice Sandra Day O’Connor from the United States Supreme Court, we are sending the opposite message.


Ken Salazar
U.S. Senator

cc: Sen. Arlen Specter
Sen. Patrick Leahy

Roberts’s Donations


The Washington Post reports on a non-scandal here.

The Solicitor General of Texas


weighs in on the John Roberts choice.

“Were There No Qualified Women?”??!?!!!


A reporter just asked at the White House press briefing. This will drive people nuts for months, if not years. I love it.

Your John Kerry Update



This much is clear already. Judge Roberts is no Sandra Day O’Connor.

Last night we learned that President Bush wants to replace a woman who voted to uphold Roe v. Wade with a man who argued against Roe v. Wade, and that sends a clear signal that this White House remains bent on opening old wounds and dividing America.

There are big questions that must be answered involving Judge Roberts’ judicial philosophy as demonstrated over his short time on the appellate court. The Senate must learn whether he has a clear, consistent commitment to upholding Constitutional standards like civil rights, the right to privacy, and Roe v. Wade. These issues are in serious question if you take even a cursory glance at his record.

We need to ask the tough questions to determine whether John Roberts is the nominee who will give America a Court that is fair, independent, ethical and committed to Constitutional freedoms rather than an ideological agenda, and I promise you I will do everything in my power to assure that no question is sidestepped.

Throughout every step of the confirmation process, I will keep you informed about the questions that need to be asked, the answers we need to demand, and the principles we need to defend. It’s impossible to overstate the importance of this moment.

As the U.S. Senate discharges one of its most important responsibilities, I will be active and vigilant. I hope you will do the same, beginning right now. Start by sharing a few words about your personal feelings on the importance of this Supreme Court nomination.

You can submit your comments or questions here:

Thank you,

John Kerry

P.S. In the days ahead, we’ll be featuring on our website a cross-section of the comments submitted and contacting you with important information and action requests as events demand. Sign up here if you want to get the latest information. Recruit your friends and neighbors, too.

The American Prospect Goes After Roberts


According to this article, he’s a threat to the Constitution.


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