Bench Memos

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Re: Sandy’s Catch-22


The Catch-22 might exist if O’Connor’s resignation were effective upon her successor’s “appointment”. But because it’s effective upon her successor’s confirmation–an act that precedes and is discrete from appointment–there’s no problem. A vacancy is needed for an appointment, but not for a nomination.

Sandy’s Catch-22


Ed Whelan speculates about the effects of a delay in Judge Roberts’s confirmation, and along the way he notes that Justice O’Connor’s “resignation is effective only upon her successor’s confirmation.” I’m not sure that is altogether true. It may be what O’Connor said, but that doesn’t make it so. Some legal scholars I know had an e-mail discussion of this a while back, and here’s what I conclude from it.

O’Connor’s July 1 letter to President Bush declared that it was “to inform you of my decision to retire from my position as an Associate Justice of the Supreme Court of the United States effective upon the nomination and confirmation of my successor.” If those last nine words are understood as setting a condition on her retirement, such that she continues in office and would take part in the next October Term of the Court if Roberts’ confirmation were delayed or defeated–or even if Bush gave Roberts a recess appointment, since that would lack “confirmation”–then O’Connor has created a classic Catch-22.

Here’s why. Title 28 of the United States Code, section 1, reads: “The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum.” Article II, section 2 of the Constitution tells us that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court.” For the president to appoint, there must be a vacant seat, whether just vacated or newly created. No tenth seat has been created. If Justice O’Connor remains in her seat today, then there is no vacancy among the nine available seats, and President Bush’s nomination of Roberts is a legal nullity. And since there is no legally cognizable nomination for the Senate to act upon, there is no possibility of a confirmation, and Justice O’Connor has been pulling our legs and isn’t leaving the Court after all. What a fun three weeks we’ve all had for nothing!

But of course this is not how the world understands the present situation, and rightly so. President Bush has considered the O’Connor seat vacant since July 1, and has duly nominated Roberts to fill it, and the Senate is poised to go through the confirmation process. These actions speak louder than O’Connor’s words, and it is those words that should be considered a legal nullity. There is in fact a vacancy, and she cannot set a condition that would make it otherwise, remaining on the Court as one of the associate justices. Come what may, she’s off the bench, and has been since July 1. I never thought Justice O’Connor understood legal principles with any particular clarity, and she departed from the Court in just such a way as to prove me right.


Schumer’s Questions


For the record, I like almost all of Senator Schumer’s questions, and I too would like to know Judge Roberts’s answers. Of course, I’d like different answers from the ones I expect Sen. Schumer would like. But almost without exception, the questions are fair game and even fairly stated. I see no ethics problem with answering any of them.

The Question of Questions


The issue isn’t what senators are going to ask, and whether they are bound by judiciai ethics rules, but how Roberts can answer. He will be on some bench, either the high court or his current court, and he must be mindful of his ethical obligations. And senators know that. I agree with what Gerry had to say, which is what I tried to say earlier but perhaps inarticulately. The senators have a wide range of questions they can ask, but if they press in ways that Roberts can’t answer, he won’t.

Sur-reply to Franck


First, it is important to note that the code is not merely “written by judges to guide judges” as Matt suggests. Rather, as the Code’s official commentaries state, “[t]he Code is designed to provide guidance to judges and nominees for judicial office.” (emphasis added). This is a subtle but important distinction for our present inquiry. While Matt is correct in stating that the code isn’t the “law of the land”–to which I would add that the Code does not carry civil or criminal penalties–the code nonetheless provides standards for conduct which can be and are applied in judicial disciplinary proceedings brought under the U.S. Code, which is the law of the land. It is therefore not surprising that while Canon 3 at issue speaks in aspirational “should” terms, the comments consistently refer to those “shoulds” as “duties.” In this case, the should/shall distinction doesn’t give much leeway to the nominee, because the entire code is written in terms of should, but behind those “shoulds” is a hammer of disciplinary enforcement. See, e.g., McBryde v. Committee to Review Circuit Council Conduct and Disability Orders of the Judicial Conference of the United States, 83 F. Supp. 2d 135 (D.D.C. 1999), aff’d in part and vacated in part on other grounds, 264 F.3d 52 (D.C.Cir. 2001), in which the judicial council imposed discipline on a judge for violations of Canon 2(A) and 3(A)(3), both of which use the aspirational should.

Of course, this does not even reach the recusal statutes, or, to my mind, the equally important prudential reasons against speaking about how you would handle cases which are likely to come before you.


Re: I Almost Don’t Believe


It turns out that my wife has complained to the Washington Post ombudsman about Robin Givhan’s weird fashion article today:

Yes, I know there are more pressing news items than children’s wardrobes, but Ms. Givhan’s July 22 article on the Roberts’s family clothes was simply too irritating. I am not sure which is more irritating: that she is writing about young children of public figures or the substance of the comments themselves. I’ll let others focus on the appropriateness of the former while I give my take on the latter.

She calls the children’s clothes “costumes” and ridicules the clothes for not being trendy. The children’s attire is simply classic, church clothes that I see on Sundays, yes, especially Easter Sunday, and at weddings. My daughters love their lace-trimmed anklets and shiny Mary Janes. My son, when he was younger, was even seen in seersucker (with bucs instead of saddle shoes). I doubt that Mrs. Roberts ran out and purchased special “costumes” for the occasion. I agree with Ms. Givhan that visitors to the White House should dress appropriately. For children, that usually will mean church clothes. They save the costumes for Halloween.

I’m, of course, rather uncomfortable being publicly associated with someone who expresses such extreme views, but I guess that’s part of the “for better or worse” vow.

Re: Roberts in Action


More on the case Shannen discusses.

Here’s a tough test: Let’s say that you were a police officer and at 1:00 a.m. you spot a car without a functioning light for its license plate. You pull the car over and conduct a records check, which indicates that the car’s temporary license tags had been reported stolen. You also discover that those tags had been altered to match the car. The car’s driver can’t produce the car’s registration or a driver’s license. A check of the vehicle identification number indicates that the car had once been registered in Virginia but is no longer registered there.

Might it be reasonable to think that the car might have been stolen? Not according to the two Democrat appointees in the opinion issued by the D.C. Circuit today in United States v. Jackson. But yes, in Judge Roberts’s view in dissent.

Next question: Might it be reasonable to think that the car’s trunk might contain some evidence—the car’s real tags, items identifying or belonging to the real owner, or tools used in car theft—that the car was stolen? Let’s say, further, that you had run across stolen tags on ten previous occasions and that on six or seven of those occasions the vehicle’s real tags were found in the trunk. Is it reasonable to check the trunk? Again, not according to the two Democrat appointees. But yes, according to Judge Roberts’s dissent.

My favorite part of the majority opinion is the assertion that real tags in a trunk simply can’t be evidence of a crime “because there is nothing illegal about having such tags in the trunk of an unregistered car.” There’s nothing illegal either about having blood all over the floor of a room in your house where a person is thought to have been killed. But that might fairly be considered evidence.

It seems to me that some Democrats were calling for a nominee with common sense—a quality particularly appropriate to Fourth Amendment judgments of reasonableness. I think it’s clear that President Bush has given them one.



A definition from John Cornyn’s office:

E·stra·di·fy (eh strä dә fĪ ), v. 1. To obstruct the confirmation of a nominee to the Federal Judiciary by making unreasonable requests for information; including but not limited to privileged documents and statements which would compromise a nominee’s ability to maintain the integrity of the position to which they have been nominated. 2. To delay and/or defeat the confirmation of a Presidential nominee by means of procedural gimmicks intended to undermine the will of a bipartisan majority of the United States Senate. [See also: Estrada, Miguel]

Roberts in Action


Great quote from a John Roberts’s dissent in a case issued today. The majority had reversed a trial court’s decision not to suppress evidence of a handgun found in a trunk because the court concluded that there was no probable cause to search the trunk. Roberts dissented, reasoning that where a car stopped for a non-working license plate light, that ended up having stolen tags and no registration, there might just be reason to search the trunk because maybe, just maybe, there would be some indication in the trunk that the car was stolen (something identifying the owners or the real license plates).

So it is reasonable for police to search the trunk, says Roberts, when in their past experience, they’ve found such contraband there before. The criminal defendant told the cops that the car was his girlfriend’s, which drew this line from Roberts: “Sometimes a car being driven by an unlicensed driver, with no registration and stolen tags, really does belong to the drivers friend, and sometimes dogs do eat homework, but in neither case is it reasonable to insist on checking out the story before taking other appropriate action.”

Another great quote same case: “I wholeheartedly subscribe to the sentiments expressed in the concurring opinion about the Fourth Amendment’s place among our most prized freedoms. But sentiments do not decide cases; facts and the law do.”

Reply to Alt


Robert responds to me by citing the “Code of Conduct for United States Judges.” Readers who go back to the first piece of mine that I cited below will see that I pointed out two years ago that the Code is not the law of the land, but a set of strictures, all couched in “should” language (not “must”), written by judges to guide judges. It is not surprising that the judges’ cartel should wish to shelter behind such language and avoid accountability, but there is no compelling reason that senators should feel bound by it.

The French-Fry Flapdoodle


The most powerful ammunition the Left can muster against Judge Roberts appears to be a soggy French fry.

I have already explained how Judge Roberts’s unanimous opinion in the Hedgepeth case illustrates that he understands the role of a judge. And Beldar properly takes Slate’s Dahlia Lithwick to task for her dishonest and baseless suggestion that Roberts “seemingly finds arresting [minors] for French-fry possession to be a cornerstone in good parent-child relations.” But given the continuing silliness, like Washington Post columnist Marc Fisher’s piece yesterday, a few points may warrant emphasis:

1. Judge Roberts’s unanimous opinion affirmed the judgment of the district judge, Clinton appointee (and winner of the Thurgood Marshall Award of Excellence) Emmet Sullivan. Not surprisingly, it appears that none of Roberts’s colleagues on the D.C. Circuit called for this rather simple case to be reconsidered en banc.

2. Nothing in Roberts’s opinion can remotely be read to suggest sympathy for the zero-tolerance policy that D.C. had in place.

3. It is very amusing that advocates of expanded D.C. “home rule,” like Fisher, won’t even trust D.C. officials to establish food policies in Metro stations. The Framers had faith that Americans were fit for self-governance. Those on the Left who think judges have a roving mandate to correct every stupid law or policy plainly don’t share that faith.

Questions, Questions


I take a stab at answering the question of what questions are appropriate to ask Supreme Court nominees in the new issue of the magazine. I’m guessing that Franck and Bradley will find more to agree with than Alt will; not sure about Levin. Alt may, however, be relieved that I do not advocate any use of hot pokers in the hearings.

Legal Philosophy Versus Legal Opinion Concerning Cases Which May Come Before the Court


In large measure I agree with both Mark and Gerry: there are a good many questions that may be asked about judicial philosophy that, to my mind at least, are substantially more illuminating than simply asking a candidate his legal opinion concerning hypothetical cases (e.g., gay marriage and abortion) likely to come before the Court. Thus, he can be asked about how he believes the Constitution should be interpreted: is it a living document? Are you limited to the text? Should you consider original intent? Should you look to legislative history? How should (or should) public policy be considered in the deliberative process? How do you view stare decisis in the constitutional context? What is the role of the Supreme Court? For example, if a law is “unjust” but comports with the text of the Constitution, should the judge strike it down under an evolving standard? Do the other branches have a role in interpreting the Constitution? What deference should the other branches/states be given. Etc.

This will quite frankly tell everyone what they need to know. The obstructionists won’t be happy with anyone who doesn’t view the Constitution as a living wish-list of liberal policy, and the court as a super-legislature promoting the same; while the conservatives will have a good idea how he will approach “novel” legal innovations. If you really need more, questions could be asked about specific areas of the Constitution, so long as the questions themselves were sufficiently general. For example, if he were an originalist, one might ask what this methodology would mean for interpretation of the First Amendment, which has strayed so far from its original moorings. This may quickly become a “how far is too far” game, but, as Gerard points out, a nominee may be able to step the questions back to a greater level of abstraction, or if the questions go too far, beg that he can’t answer due to the canons of conduct.

The obstructionists entire game, however, will be to ask him questions and the administration for documents that they know are inappropriate. My sense is that when Schumer and Kennedy ask questions, there will be no fine determinations needed: the questions will be well on the other side of what a nominee should answer about his views on cases which are all-but-certain to come before the court.

So ask away about judicial philosophy and methodology—you’ll learn everything you need to know about how he will approach the law. But express questions about legal positions on issues like gay marriage or abortion which are likely to come before the court should not be answered based on the canons, appearance of impartiality, and prudence.

A Filibuster By Any Other Name....


Ed Whelan is right to be ticked at Senator’s Schumer’s questions. But he is wrong that they constitute a demand for a treatise. If that were all! No treatise writer would ever try to handle so much between just two covers. Constitutional law, history, normative, descriptive — you name it and the Senator asks about it. Seems to me that it is savvy politics on Schumer’s part: by the time John Roberts is finished answering, the 2005-6 term will be done.

What are the rules for filibustering committee hearings?

The Gall of Schumer


So the second-most-junior Democrat on the Senate Judiciary Committee wants Judge Roberts to compose a treatise on constitutional law in the coming weeks. Schumer’s inability to show any self-restraint ought to make it easy to ignore his absurd request.



Shannen Coffin will be on PBS’s Newshour.

Re: the case of Alt v. Franck


Matt Franck says that a nominee should be asked questions about specific issues and even about particular decided cases. Robert Alt says not. He also says that a nominee could not answer them without violating canons of judicial conduct. (No doubt as to where Senator Schumer comes out on this one.) I do not know much about the judicial canons. But some obvious questions about interpreting them come to mind. Does prohibited “public comment” include answers elicited by Senators’ questions at confirmation hearings, where the “comments” pertain to legal principles and norms, and not to particular lawsuits? What if the nominee prefaces each answer with a caveat: “Of course, Senator, I cannot say for sure how I would rule in such a case, for that would depend upon particulars about which I now know nothing. But as to the general question of whether the unborn are ‘persons’ within the meaning of the Fourteenth Amendment (for example), I can say this, because that is a metaphysical question which does not depend upon the vagaries of litigation, any more than the question of whether black folks and white folks are all persons possessed of equal dignity depends upon the litigants”. What if a Senator asked only about opinions (and other writings) authored by the nominee? “Why did you cite Justice Scalia’s concurring opinion in that case, as opposed to the contrary assertion in the majority opinion? You distinguished that line of cases as inapposite? as undermined by later cases? What did you mean?” Should the canons be understood to mean that the nominee must censor himself here, too, if there is some chance that answering the questions will amount to “public comment” about possible litigation?

Often enough the meaning of a law is as uncertain as the judicial canons may be. In such instances — whether it be a law or a an ethical canon — a good judge will turn to the values or policies which underlie them. In this case, those values would be judicial objectivity and impartiality. These judicial virtues refer, first and foremost, to the parties and facts of particular lawsuits. Every litigant is entitled to expect that the judge in his or her case will not play personal favorites, that the parties stand equal in the court’s eyes, that the case has not been pre-judged. This part of the judicial ethic also requires that the judge not hold biases or prejudices against the ethnic or racial or religious group of which the litigant is a member. Every litigant is also entitled to a judge who has not decided (somehow) in advance of trial what the truth about contested facts is. Otherwise, the trial would be a waste. And a litigant is entitled to have the relevant law — and not the judge’s idea of what the law ought to be — applied to the case at hand.

Beyond these essential virtues lies a different sort of “pre-judgment”, if you will: the nominee’s judgments of what is sound (valid, true) thinking on larger questions of law and interpretation and morality (“equality”, “fairness” “moral turpitude” “unjust discrimination”; there are many, many more examples.) No litigant is entitled to a judge without views, even strong ones, on these matters. I think Matt Franck is focused on this terrain. I think he is right that a nominee may be asked about how the nominee would navigate it. If the nominee’s honest answer is, “I don’t know” or “I have no firm belief on that”, so be it. If the nominee’s honest answer is: “I believe that I should not say, because it might breach judicial ethics for me to answer you directly”, so be it. Of course, the money question may be whether a pattern of such answers would suffice for the conscientious Senator to withhold consent to such a nominee’s appointment.

re: Whelan’s Article


Ed, you note that you do not believe that the Fourteenth Amendment protects unborn life. You believe, instead, that the original understanding of that amendment is compatible with either life-protective or killing-permissive legislation. It was not the purpose of your article to explain why you don’t believe that the “pro-life position” is compatible with the original understanding, so you didn’t. I’m not going to try to defend my views on the matter here, but simply register disagreement. I believe that the Fourteenth Amendment does indeed require protection for unborn human beings (although I think it’s the equal-protection clause, not the due-process clause, that is relevant here). I do not believe that the Supreme Court is authorized to require states to protect unborn human life; I believe that Congress is obligated to do it. (Here I think section five is what’s relevant).

Delay Is Futile


Any Senate Democrats who think that delaying John Roberts’s confirmation will yield the Left any advantages ought to think again.

Because O’Connor’s resignation is effective only upon her successor’s confirmation, some on the Left might think that delaying Roberts’s confirmation by a month or two would mean that O’Connor rather than Roberts would be taking part in the decision of cases that the Court will hear in October and November. But as this article explains, it is settled practice that a justice cannot participate in the decision of a case unless he is a member of the Court when the Court’s decision is announced.

Here’s what this means in practice: Let’s assume that O’Connor were to take part in the oral arguments in October and November and that Roberts’s confirmation were to be delayed until mid-November. Because her resignation would take place in mid-November, O’Connor would not be able to take part in the final decision of any of the previously argued cases in which opinions had not yet been issued.

Only the non-controversial unanimous cases get decided within a month or so. Any remotely controversial case could be expected to take several months. Thus, delay would not benefit the Left.

If there are any closely contested cases in October or November in which Roberts’s vote would be dispositive and his confirmation is delayed, that delay would serve merely to disrupt the Court by requiring that the cases be re-argued.

In sum, delay is futile at best and unduly disruptive of the Court’s processes (and O’Connor’s retirement plans) at worst. Senate Democrats who have any interest in acting responsibly should therefore ensure that Roberts is confirmed in time to take part in, and prepare in advance for, the opening argument session on October 3, 2005.



I actually believe there are lots of questions that can be asked of Roberts for the purpose of discerning his judicial philosophy. He needs to familiarize himself with the relevant ethics codes, as Brother Alt makes clear. But questions about his interpretation of the commerce clause, the takings clause, and so forth are perfectly legitimate. Those of us who, dare I say, are members of the Federalist Society (unlike Roberts) hear sitting judges expound on these topics all the time. I differ with Brother Franck on whether Scalia was right in recusing from the Newdow case and think he skated too close to the line not to recuse. But even in U.S. v. Nixon, I’ve always thought it interesting that Rehnquist recused but Berger did not. Given the immense importance of these nominations, I think a fulsome but appropriate inquiry is essential without turning the process into a circus as Schumer urges.


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