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Bench Memos

NRO’s home for judicial news and analysis.

The Liberal Plantation



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Peter Kirsanow has previously noted that “[l]eft-leaning political cartoonists depict [Janice Rogers Brown] as an Aunt Jemima on steroids, complete with exaggerated physical features typically found only in the racist literature distributed by hate groups.” Schumer’s rhetoric (quoted by Kathryn) would seem to suggest that he views Brown as an “uppity black woman.” (The quote marks are to highlight the racist cliché, not to attribute those specific words to Schumer.) All of this is further evidence for the proposition, long advanced by the Wall Street Journal op-ed page, that liberals are very scared by blacks who have dared to escape from the comforts of the liberal plantation.

Boxer Rebellion



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Senator Barbara Boxer yesterday argued that Janice Rogers Brown is “bad for women” (translation: a bad woman) because she “voted to strike down a State antidiscrimination law that provided a contraceptive drug benefit to women.” This was a religious-freedom issue before the court, it wasn’t about Brown’s position on contraception. Rick Garnett wrote about the Catholic Charities of Sacramento v. Superior Court case here.

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Yeah, She’s Nominated for Dictator, Charlie



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Senator Charles Schumer’s exalted rhetoric on the Senate floor on the Brown nomination: “What does Janice Rogers Brown want to be nominated for; dictator? Or Grand Exalted Ruler?”

Cornyn for SCOTUS



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so the Houston Chronicle speculates.

Isn’t this all you need to know? “The idea of Cornyn on the high court troubles Ralph Neas, president of the liberal-leaning advocacy group People for the American Way.”

The Post and Justice Brown



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The Washington Post, like so many of Justice Janice Brown’s critics, seems to conflate Justice Brown’s political and legal views. (Incidentally, this is the substance of many of the attacks on Judge William Pryor as well.) The underlying assumption is that if Brown opposes affirmative action or the growth of the welfare state, she necessarily would seek to enact her views from the bench. This view not only does a disservice to Justice Brown’s record as a judge, it suggests that only those without political perspectives (or who share the political preferences of the Post) are suited to the bench. One of a judge’s most important responsibilities is to put aside his or her own political preferences and to apply the law in as neutral and fair a manner as possible. Are judges capable of setting aside their personal views? Yes. One only need look as far as yesterday’s Supreme Court opinion in Gonzales v. Raich for several examples. In that case, it is clear that at least two of the justices voted for a holding that produced an outcome prior to their personal policy preferences. If the Post wants to make the case against Brown, it has to show that she is incapable of doing the same. It’s not enough that she has strong and independent political preferences of her own.

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Leader of the Pack



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Harry Reid yesterday: “We’ve spent weeks and weeks debating radical judges. But we haven’t spent a single day debating a health care plan, or a jobs plan, or an education plan that will help hardworking Americans.” (Hat tip)

The Washington Post on Janice Rogers Brown



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The Washington Post’s editorial today advocating the rejection of California supreme court justice Janice Rogers Brown’s nomination to the D.C. Circuit labels Brown a conservative judicial activist and asserts that “[n]o senator who votes for her will have standing any longer to complain about legislating from the bench.” It would be tempting to dismiss the Post’s editorial on the ground that the Post, having voiced no objection to liberal judicial activists, is hardly in a position to preach about judicial activism. But such a dismissal would not deal squarely with the Post’s argument.

I have not reviewed Justice Brown’s record and therefore am not in a position to offer my own assessment. (See Peter Kirsanow’s thorough defense of Brown.) But it is striking how feeble the Post’s evidence in support of its charges is. The Post claims that Brown has “openly embraced the ‘Lochner’ era of Supreme Court jurisprudence”–the era from 1905 to 1937 in which the Court used “substantive due process” to invalidate economic legislation. But in fact Brown has written that the “Lochner court was justly criticized for using the due process clause ‘as though it provided a blank check to alter the meaning of the Constitution as written.’”

The Post also criticizes one of Brown’s dissents in a case that presented a challenge under the Takings Clause of the California constitution. The Post seems not to understand the world of difference between giving force to a provision, like the Takings Clause, that is plainly meant to protect property rights and reading into the Due Process Clause (which provides merely that no state shall “deprive any person of life, liberty, or property, without due process of law”) absolute substantive protections for whatever interests a judge happens to favor.

If this is all the Post can muster against Brown, it has provided no reason for any senator to vote against her nomination.

Thought of the Day



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While nitpicking about Janice Brown’s alleged judicial activism, Sen. Schumer (D, NY) said he was “equally offended” by judicial activism whether from the right or left. Really? When was the last time Schumer complained about federal courts striking down parental notification for minor abortions, or redefining marriage, or discovering protections for computer generated child pornography?

Another Voice



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The folks at SCOTUSBlog have added a Supreme Court nomination blog.

NARAL Pro-Choice California, National Abortion Federation....



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Barbara Boxer is on the floor right now listing off groups that oppose Janice Rogers Brown. It is more than these, but if you were casually listening, it certainly sounded like every abortion-advocacy group there is.

Michael McConnell and the Religion Clause Mainstream



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Last week, in Cutter v. Wilkinson, the Supreme Court unanimously upheld the Religious Land Use and Institutionalized Persons Act, Congress’s latest effort to accommodate the religious needs of prisoners. My take on the decision is available on NRO, here.

It is worth noting, as we all gather our breath for the upcoming judicial-nomination fights, that the (unanimous) Court’s framework for evaluating legislative accommodations of religion closely tracks the analysis advocated by then law professor (now Judge) Michael McConnell in a 1992 article, “Accommodation of Religion: An Update and a Response to the Critics.”
There, Judge McConnell argued that the Constitution required asking whether an accommodation “removes a significant obstacle to the exercise of a religious belief” or rather “induces the person to adopt (or feign) the religious belief in order to receive the benefits of the accommodation”; whether it imposes a “burden on nonbeneficiaries”; and whether it “favors one religion over another.”

Although Justice Ginsburg’s opinion for the Court does not cite this article, these are the same factors that she relied upon in upholding the religious freedom law for prisoners: whether it “alleviates exceptional government-created burdens on religious exercise”; whether it imposes “burdens . . . on nonbeneficiaries”; whether it is available “neutrally among different faiths”; and whether it creates an excessive incentive to change one’s religious behavior. Prior opinions had largely focused on the first factor–whether the accommodation removed a significant government-imposed burden on religion. The Court’s opinion in Cutter marks, I think, the first time it addressed all of these aspects of accommodation in an opinion joined by a majority of the Court.

Some have unpersuasively criticized the church-state views of Judge McConnell, a possible candidate for a future Supreme Court vacancy, as (there they go again . . . ) outside the “mainstream.” Evidently the nine members of the Court–led by left-leaning Democratic appointee Ruth Bader Ginsburg–do not agree.

Mauro on McConnell



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Tony Mauro has this profile of Judge Michael McConnell in the Legal Times. Judge McConnell is likely to be on the short list for any Supreme Court opening. He was actively supported by prominent law professors from across the political spectrum when he was nominated to the Tenth Circuit. The question is how many of his former academic colleagues would support him for the High Court.

Owen Sworn In



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Coverage here.

Brown Debate Begins



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The Senate should begin debate on Justice Janice Rogers Brown this afternoon, and a vote on her nomination could come as early as Wednesday. A vote on Bill Pryor could come at the end of the week.

Supreme Court Curveballs?



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Could a Supreme Court decision in a pending case impact the debate over Bush’s judicial nominees? With decisions pending in the ten commandments, eminent domain, and medical marijuana cases, that’s a real possibility. Although the results in these cases are unlikely to be a surprise, the opinions and rationales may contain some surprises. Opinions are due out Monday, June 6–though in what cases we don’t know–so stay tuned.

Kavanaugh’s No Leaker



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Having worked with Brett Kavanaugh daily in the White House for two years, I can assure you he’s no leaker. During our two years, I don’t believe there was a single leak–of anything–out of the Counsel’s Office. That’s pretty remarkable given the intense public interest in many of the things that were going on during the aftermath of 9/11 and the torrent of press calls that came in. And of course dealings with the press and even leaks are typically much more common and much more accepted in a place like the White House than in a prosecutor’s office.

Brett is the soul of discretion who is, if anything, allergic to press contact. His attitude has always been that the best, safest, and most honorable course for a public servant in the executive branch is simply to avoid press contact and leave it to the communications professionals to worry about press coverage. I would be absolutely amazed if he ever leaked a thing while working for Starr or anyone else.

I think this all got started not by the groups but by a careless suggestion in the press. There was an item (I believe in the Legal Times) earlier this week that made some reference to leak allegations against Brett. Prior to that I had heard nothing about this. I suspect it’s all just a silly game of telephone. The problem with Brett from the Left’s perspective is guilt by association with Ken Starr and President Bush. It’s as simple as that. There’s nothing in his own record or service that realistically would justify any concern on their part. They just believe that, given the company he keeps, he must be bad, bad, bad. In their eyes, there’s not much room for an honest, honorable, principled, and conscientious conservative (could it be they think that description is a contradiction in terms?) in the Whitewater investigation or the Bush Administration. Note, though, that many of the Clinton-side lawyers who dealt with Starr’s office during the investigation will tell you that, from their perspective, he was always one of the prosecutors who could be counted on to be fair and straightforward.

No “Leak Issue” for Kavanaugh



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I was surprised to read a couple recent postings that made oblique references to supposed allegations that Brett Kavanaugh, President Bush’s outstanding nominee to the U.S. Court of Appeals for the D.C. Circuit, might have engaged in leaks while working for Ken Starr’s independent-counsel investigation. It appears that some conservative radio commentators have been defending Kavanaugh against such supposed allegations. In fact, from what I have been able to determine, there is absolutely no “leak issue” concerning Kavanaugh.

I am reliably informed by a knowledgeable source that no one in the Senate or in the left-wing activist groups opposing the president’s judicial nominations has ever alleged any leaks by Kavanaugh. People for the [Un-]American Way’s lengthy screed against Kavanaugh’s nomination criticizes Kavanaugh for being a “Starr protégé” and, in reminding readers what a bad, bad man the admirable Starr was, asserts that “secret grand jury information was intentionally leaked by Starr’s office.” But, notwithstanding PAW’s general willingness to make elaborate leaps, its report does not in any way allege or even insinuate that Kavanaugh was responsible for any such leaks.

I am also reliably informed that any such allegations would be entirely baseless.

It is of course possible that, somewhere in the murky miasma of the loony left, someone is flinging such allegations against Kavanaugh. (It is also possible that Michael Moore and Oliver Stone are collaborating on a new pseudo-documentary implicating Kavanaugh in JFK’s assassination.) But it would be a serious disservice to Kavanaugh to give any such allegations any currency. Among other things, one can easily imagine Senate Democrats claiming that some new buzz about supposed leaks requires further investigation and delay.

Brett Kavanaugh was nominated nearly two years ago, on July 25, 2003. His Judiciary Committee hearing occurred more than one year ago, on April 27, 2004. It is long past time for this outstanding nominee to be confirmed.

We Have Competition



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The National Women’s Law Center has launched a judicial nominations blog of its own, Nomination Watch. It’s been up for scarcely more than a week, and already it’s gone on the attack over William Pryor and Justice Janice Rogers Brown.

Was Abe Fortas Defeated by Filibuster?



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Ah, the irony. In Wednesday’s edition of The Hill, Byron York pointed out that several Senate Democrats last week had justified their denial of cloture to U.N. nominee John Bolton on grounds of extending debate to procure more information, but that it was NOT a filibuster. While York is technically right to dismiss this argument–by definition a filibuster occurs when a vote of cloture fails–in the context of judicial confirmations, Committee for Justice has argued there is a difference between a temporary denial of cloture for procedural reasons, to prevent a rush to judgment, present new information, etc., versus the permanent veto wielded by Democrats in the 108th Congress.

In fact, last week’s statements reminded me of former Sen. Robert Griffin’s (R., Mich.) words during the debate over Abe Fortas: “[T]hus far, there have been only four days of Senate debate on this very important, historic issue. . . . [A] filibuster, by any ordinary definition, is not now in progress.” And: “An examination of the Congressional Record … clearly reveals that the will of the majority was not frustrated. . . . On the basis of the Record, then, it is ridiculous to say that the will of a majority in the Senate has been frustrated.”

Next time Democrats cite Abe Fortas as adequate precedent for recent judicial filibusters, just ask them about John Bolton.

The Next Nominees



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Most of the current judicial vacancies are on the district courts, where there is unlikely to be much controversy about the President’s nominees. The key is to watch the handful of appellate nominees, such as that to replace Michael Chertoff or to fill the multiple vacancies on the Ninth Circuit. Howard Bashman notes a list of current vacancies is available here.
And pending vacancies can be found here.

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