Bench Memos

NRO’s home for judicial news and analysis.

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.”

Roberts and Civil Rights


Here’s my effort to explain what is really at issue in the Left’s attack on John Roberts’s civil-rights work for the Reagan administration.


No Decency Here


From a Daily Kosser: “I’m tired of smiling in the face of Rovian dirty tricks. That’s my justification for conducting a one man smear campaign on a conservative justice- besides, spreading the rumor that he’s gay wouldn’t piss off anyone I respect, which makes the rumor that much more entertaining.”

Kelo Should Be Reheard


Lessons Learned



Feddie and Me


My article on incest here at NRO has occasioned a response by “Feddie” over at the blog Southern Appeal. Feddie says he doesn’t like the “tenor” of my criticism of Judge Manion, for whom he once clerked. But I vouched explicitly for the competence, honesty, and legal acumen of the good judge in the article itself, so I don’t know where that complaint comes from.

More to the point, Feddie and one of his readers take me to task for not acknowledging in my article that the Muth case was a review of a habeas corpus petition. It is true that I did not burden ordinary readers with a point so arcane, since it was entirely immaterial to the argument I was making. Readers uninterested in the nerdier aspects of federal appellate law can stop reading at this point.

In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act (AEDPA), which among other things attempted to rein in federal courts that had run too far in habeas corpus review of state criminal convictions. Judge Manion’s opinion read AEDPA as requiring the circuit court to consider whether the Lawrence ruling was to be applied retroactively, since Allen Muth had been convicted of the crime of incest, and had had all his appeals in Wisconsin courts, before Lawrence was decided in the summer of 2003. Manion and his colleagues held that because Lawrence announced a “new substantive rule” of constitutional law and not merely a new procedural holding that a state court could in good faith have dispensed with beforehand, it was “thus retroactive.” In short, Muth was held to have passed every hurdle in the way of unbridled adjudication on the constitutional merits that Congress legislated in AEDPA.

In the last analysis, this simply means that for Judge Manion, Lawrence was the relevant precedent for deciding Muth’s case, and “the ultimate question then” was “whether Muth is a beneficiary of the rule Lawrence announced,” no more and no less. All the business about this being a habeas case mattered in the end not at all, but was just a lengthy throat-clearing operation. The circuit panel went fully to the constitutional merits on this case, and its opinion on that score was what my article was about.

On another point, I’ll take this opportunity to thank Gerry Bradley for his kind words about the article.

“while a young government lawyer [Roberts] was uneasy, if not hostile, to the idea of lifetime judicial appointments.”


That’s from the AP. Tough man! You’re gonna get in and do us good. (Kathryn rushes to say a little prayer she’s right.)

Red Meat, For Sure


Scrappleface (parody site) Romer headline: “Roberts Took Liberal Portion of Red Meat”



Matthew makes a good point re Lawrence. Rick Santorum warned of its consequences as well.



More Romer stuff in The Corner.

Re: Romer Story


This quote is circulating around the chattering-class circles: “From my own experience as a Supreme Court practitioner, it’s no surprise that John Roberts would have been asked to help with Supreme Court cases that other colleagues had brought into the firm. And it certainly is not uncommon to have to advance a legal position with which the lawyer might not agree were he the judge in the case.” Kenneth W. Starr, Former U.S. Solicitor General, Partner at Kirkland & Ellis, and Dean of Pepperdine School of Law.

Among lawyers I’ve talked to and secondhand conversations today, I’ve not encountered anyone who thinks it would be unusual at all for Roberts to have lent a hand in a case in this way. Evidently lawyers who worked with Roberts at Hogan & Hartson say that he had a policy of being cooperative whenever the pro bono department at the firm asked. One estimate I’ve seen estimates he probably was part of 100 moot courts at the firm’s request. Sounds like he was just doing his job.



Matt Franck’s piece on incest is a must read. Having just read it myself–and having never heard until now of the Seventh Circuit case (Muth v. Frank he discusses–here are four thoughts that come to my mind:

One: Judge Dan Manion is a most capable jurist, and and he is possessed of sound moral sense. Matt is therefore right that the only explanation for the weaknesses he sees in Manion’s opinion owe to the latter: Manion is too decent a guy to draw out the foul implications of Lawrence. Let the Supreme Court further foul its own nest, I guess.

Two: Lawrence surely puts incest in the dock. As bad as the Court’s “privacy” jurisprudence had been since 1965, it was not until June 2003 (in Lawrence) that the Court decreed that marriage could not be the principle of legally enforced sexual morality in this country. Fornication, adultery, homosexual relations could all be made crimes until then because, as Justice Harlan put it in a 1961 opinion, the state could “confin[e] sexuality to lawful marriage.” No more. Now the constitutional principles of enforceable sexual morality are consent and privacy (assuming adults are involved).

As Matt says: Then, why not incest?

Three: If brother and sister can have sex without the state saying “no”–as Lawrence seems to imply–then they can marry, too. Sometimes we think that the incest taboo owes to the genetic abnormalities that the children of siblings would likely suffer. But that is not the source of the legal ban on incest. If it were, we would have to rethink it anyway: Today, “brother” and “sister” often have an attenuated genetic relationship–blended families, artificial reproduction, and the like. Their issue may have no more genetic tendency to illness than that of any other couple.

The incest taboo arises instead from the eminently sound conviction that the right relationship of brother to sister is incompatible with sexual attraction between them. The law has long prohibited marriage between siblings precisely to buttress this norm of sibling chastity: There is no moral sense to sexual attraction between siblings if it is impossible for them to marry. The sexual attraction can’t lead to where sexual attraction tends to, and is morally supposed to, lead: marriage. Thus, it is all the less likely that the attraction will arise and that, if it does, well-formed kids will indulge or cultivate it.

Four: Matt is exactly right that Muth belongs on the list of topics senators should discuss with John Roberts next month.

Roberts on Civil Rights


Ann Coulter


continues her anti-Roberts schtick: “Compared to what we know about John Roberts, Souter was a dream nominee.”

DailyKos Is Happy


Indeed, a poster there takes some solace in the hope that the Right will undo the Roberts nomination:

LATimes Gives It a Try


Today there’s a story in the Los Angeles Times about Roberts’s ties to the 1996 Romer case: “Then a lawyer specializing in appellate work, the conservative Roberts helped represent the gay rights activists as part of his law firm’s pro bono work. He did not write the legal briefs or argue the case before the high court, but he was instrumental in reviewing filings and preparing oral arguments, according to several lawyers intimately involved in the case.”

Methinks the LATimes is trying to start something here–if the Left can’t destroy him maybe they can get some of those right-wing whackos to help, is the thinking?

I suspect (call it an educated guess) his role in the case is relatively slight.

Can We Be Decent About This, Please?


Reporters digging through Roberts adoption records is similar to the same kind of unfair, intrusive, irrelevant nonsense that surrounded the Bill Pryor nomination–the Disney Smear and the Miguel Estrada nomination–he’s not Hispanic enough (what does that even mean?).

They’re Estrada-ing Roberts already–using his wife and his children if that’s what it takes.

Nevermind decency. Let’s talk shop. Dems: You better condemn that line of inquiry, and fast. 2006 is election year, and don’t play with the kids. On a Supreme Court nomination? People aren’t going to miss that.

Revealing the Inner Secrets of The Federalist Society


The Federalist Society offers this response (no secret password required) to the New York Times’s recent article describing it as “a conservative legal group whose influence is the source of ever-swelling myth, mystery, insinuation, denial and debate.”

And Same to You, John


Judge Bill Pryor talking about John Roberts:

Many Senate Democrats opposed Pryor’s nomination, and Pryor had been through a bruising hearing before the Senate Judiciary Committee that June. The next morning, Pryor said, Roberts told him, “Bill, I’m here to tell you, you will some day be confirmed.”

Pryor laughed and added, “I wasn’t so sure he was right, but he ended up being right.” The Senate just two months ago made Pryor’s place on the court permanent on a 53-45 vote.

re: It’s Fishing Time!


I love this quote:

“We, of course, oppose him coming right out of the block,” says Nancy Keenan, from NARAL Pro-Choice America, “and we’re not fuzzy about that.”
Translation: We weren’t waiting for a reason and still probably don’t have one. But we oppose him, darnnit.


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