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Bench Memos

NRO’s home for judicial news and analysis.

Re: Leahy’s Litmus Test



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If you want to see what kind of judge earned Senator Leahy’s approval as “a judge of proven competence, temperament, and fairness” and “an excellent choice,” take Lee Sarokin. Please!

In 1994, President Clinton nominated then-district judge Sarokin to be a judge on the U.S. Court of Appeals for the Third Circuit. As Senator Hatch accurately stated at the time, Sarokin had earned a reputation as a stridently liberal judicial activist. Indeed, Sarokin described himself as a “flaming liberal” as a judge. The Third Circuit had lambasted Sarokin for “judicial usurpation of power,” for ignoring “fundamental concepts of due process,” for destroying the appearance of judicial impartiality, and for “superimpos[ing his] own view of what the law should be in the face of the Supreme Court’s contrary precedent.” The New Jersey Law Journal had reported that Sarokin “may be the most reversed federal judge in New Jersey when it comes to major cases.” A broad range of police and victim’s groups announced their opposition to his nomination.

In a wildly lawless ruling, Sarokin declared that the Morristown public library couldn’t enforce its written policies to expel a homeless man who regularly engaged in offensive and disruptive behavior and whose odor was so offensive that it prevented the library patrons from using certain areas of the library and prohibited library employees from performing their jobs. “[O]ne person’s hay-fever is another person’s ambrosia” was among Sarokin’s justifications for preventing a community from setting even minimal standards. Here’s a fuller memo on this case and Sarokin’s broader record that Senator Hatch submitted on the Senate floor.

With Leahy’s support, Sarokin was confirmed to the Third Circuit a mere five months after his nomination.

Re: The Da Vinci Code: SCOTUS version



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Kathryn, in its discussion of “how faith might influence law,” the article you link to includes this stupid statement: “Two of the Catholics on the current court–Antonin Scalia and Clarence Thomas–are abortion foes.” Is it too much to expect an AP reporter to understand that the constitutional position that Scalia and Thomas take on abortion–that the Constitution does not speak to the question but instead leaves it to the people to adopt protective or permissive abortion laws–is substantively neutral on abortion?


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Re: Dellinger on Disclosing SG Office Documents



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A reader offers this interesting forecast regarding Walter Dellinger’s peculiar statement that Roberts’s SG documents “will be made public”:

He walked right up to the line and then swerved to avoid calling for the release of Roberts’ SG documents (thus not contradicting the previous letter he signed). He predicted their release instead. Why?

Because his op-ed is a political, not a legal document. The Dems have had no credible response when confronted with the former SGs’ letter. . . they needed a talking point! Dellinger has given it to them. You watch. Shortly the Dem pols and strategists will start saying the memo is no longer operative. They’ll “quote” Dellinger as saying this case is different and the docs should be released in Roberts’ case. Dellinger won’t come forward to correct the record. Voila! The letter is “inoperable” and Dellinger has avoided any hard questions about his “contradictory” positions.

Re: Leahy’s Litmus Test



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Let me see if I have this straight: In Leahy’s view, a Supreme Court justice should invent rights that aren’t in the Constitution and ignore rights, and limitations on government power, that are in it. To do anything else would be “activist”.

The Da Vinci Code: SCOTUS Version



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New AP Story: “Roberts would be fourth Catholic on Supreme Court; impact unknown”. How ominous does that sound?!

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The Reluctant Cultural Warrior



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Kathryn pastes in a Texas newspaper blurb to the effect that John Roberts is a ray of hope for religious conservatives. The assertion is that Roberts has succeeded within elite institutions with “conservative religious, moral and political values intact.” Indeed he has, at least as far as I can tell. The writer notes, further, that this sort of person “could help bridge the red-state/blue-state cultural divide.” There is reason to wonder. Do the elites who speak for the blue states really want a bridge connected to red-state folks? I mean, then those eerie “values” voters could come on over as they please. NASCAR nuts moving onto our cul de sac? Don’t think that is what Chuck Schumer or People for the American Way are looking for.

More important are questions arising from the apparent separation of Roberts’ moral and religious values from his professional pursuits. Of course I refer to a particular and limited aspect of his modus operandi. Roberts is by all accounts as decent and generous a man as you will ever meet. No doubt these (and other) admirable character traits owe to his religious and moral convictions. But Roberts himself (now famously) has said often that his personal views about matters such as abortion do not affect his professional judgment or even (as far as he could see) his views about applying Roe v. Wade. There is abundant evidence these comments are indebted to a wider view of law which swings free of his beliefs about controversial moral matters. Roberts has been almost impossibly cautious in speaking his mind about burning issues, even in social settings where most people inside the Beltway won’t shut up. He has been a very, very reluctant culture warrior, if there is any sense of thinking of him in those terms at all.

My point is not to criticize John Roberts. My point is that very different ways of thinking and acting in the culture war are just as defensible as are his reticence and his brand of positivism. (Truth be told, I think his positivism is mistaken. As to his reticence, well, let’s say that it does not come naturally to me, and leave it at that.) My point, in other words, is that we should go lightly on the notion that Roberts is somehow a model or norm for our time. Lastly, I do not see how Roberts could be moral conservatives’ bridge over troubled cultural waters. He may surprise us when he gets to the Court, and I hope he does. But to date he seems to me, at least, to be a man who has privatized his morals and religion too much for that.

Why Did the White House Release Any Documents?



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Charlie Schumer is giving the White House no credit for releasing any documents because they haven’t released them all. So what was the point of releasing any? As the day goes by my “benefit of the doubt” reflex toward the White House is becoming weaker and weaker. By the evening news, will the White House even get credit for releasing anything? By the weekend shows will anyone even remember? And those who remember will say, and understandably, If you released some, what can possibly be the justification for not all?

Democrats and Documents



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The Democrats are acting like they think they will never be in charge of the Executive Branch again.

It’s ironic, for example, that Sen. John Kerry–who fought tooth and nail the public’s right to see his third-rate academic performance in college and his military records–would irresponsibly demand documents subject to the highest privilege the law allows and disclosure of which both Democratic and Republican solicitors general have said would greatly undermine the operations of the office.

These solicitors general know it is important for the Executive Branch to keep certain deliberations private, when they involve national security or other sensitive issues, and to ensure that the president–whatever his party–gets honest and candid legal advice so he can act on behalf of the American people based on the best legal advice.

I wonder if the senators demanding privileged documents will be willing, in their next election campaign, to turn over all of the memos they have received giving them legal and policy advice. After all, those documents would be just as much the property of the taxpayers as privileged legal documents from the solicitor general’s office.

Senator Schumer



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at the National Press Club right now (it’s on C-SPAN 3) sounds like he has already decided he’s not going to like Roberts’s answers to Dem questions.

He promises the hearings will drag on: “It’s going to take a long time.” “To set a deadline…that would not allow us to do our job.” (September 29th being the talked-about deadline–not exactly unreasonable–hasn’t Schumer already realeased.)

He’s obsessing about a deadline–you’d think “no deadlines” for hearings votes can ever be agreed on were in the Constitution. Maybe in a living Constitution that is. I’ll have to consult the Supreme Court.

Miranda, Roberts, and the Federalist Society



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I am sure I am not the only one who is exasperated and amused by various senators’ and journalists’ breathless and utterly uninformed assumptions about the Federalist Society, and by the raised eyebrows in certain circles about the possibility that Judge Roberts might sympathize, or have once been affilated, with that shadowy cabal of extremists. It is all so tedious. In any sane, honest world, the activities of the Federalist Society and the views of its members would be recognized for what they are–perfectly respectable, defensible, and–yes–conservative. I’m inclined to agree, then, with Manuel Miranda’s argument in today’s OpinionJournal that neither the administration nor Judge Roberts’s (many, many) supporters should be at all defensive about the Federalist Society. (That said, if Judge Roberts has never been a member, there’s no reason not to point that out.)

Speaking as a relatively recent law-school graduate, and as a law teacher, I think it needs to be emphasized, far and wide, how valuable and educational the work of the Federalist Society is. In my experience, the Federalist Society and its events are some of the (unfortunately) rare contexts where lawyers and law students are exposed to genuine debate, and presented fairly with mainstream conservative and constitutionalist thinking. In fact, as every informed observer knows, there is no cabal, there is no handshake, and there is no secret: The Federalist Society exists to improve and enrich students’ educations and lawyers’ conversations. The Society should be praised in the press, and not subjected to DaVinci Code-style treatment.

Here, by the way, is a must-read op-ed by Eugene Volokh, written a few years ago in the context of Viet Dinh’s nomination to serve as assistant attorney general.

Leahy’s Litmus Test



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Leahy says he won’t vote for Roberts without support for Roe

The Associated Press

MONTPELIER, Vt.–Sen. Patrick Leahy said on a radio call-in show that he would not vote to confirm John Roberts for a seat on the U.S. Supreme Court if the appeals court judge does not proclaim his support for the landmark Roe vs. Wade abortion ruling.

Leahy said on Vermont Public Radio’s “Switchboard” program that he wanted Roberts to answer questions about previous Supreme Court decisions when the judge appears before the Senate Judiciary Committee for confirmation hearings.

Leahy is the ranking Democrat on that committee.

“Just as you would not have a justice nominee who said, `Well I wouldn’t consider Brown vs. Board of Education settled law,’ I don’t see how they could get confirmed. I don’t see how somebody who said that they didn’t consider Roe vs. Wade settled law … I don’t see how they get confirmed,” Leahy said.

The Vermont Democrat discussed several aspects of the Roberts’ nomination during the call-in show Tuesday.

Leahy said he would vote against Roberts if the senator believes the judge would pursue an “activist” judicial philosophy on the court.

“They have struck down parts of the violence against women act, environmental acts, child safety legislation,” Leahy said. “They’ve knocked down all these, basically writing the law themselves. I want to find out if he’s going to be as active as this _ as people like Justice (Antonin) Scalia and Justice (Clarence) Thomas have who have almost willy-nilly overruled things.”

The White House says it wants the full U.S. Senate to vote on the Roberts nomination before the new Supreme Court term starts at the beginning of October. Leahy said it would be a mistake to shorten the confirmation hearings in order to meet that timetable.

Not Many Were Interviewed



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Based on news reports today about John Roberts’s papers, I’m more impressed with him. Of course, Ted Kennedy won’t be happy, which makes me happy. But I am told, and disappointed to learn, that the president actually did not interview Mike Luttig, Edith Jones, Janice Rogers Brown, or Alice Batchelder, among other leading originalist judges, when considering a nominee. I wonder what this portends for future appointments to the Court, and I’m not sure it’s good.

Dellinger on Disclosing SG Office Documents--Then and Now



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Walter Dellinger, who headed the Office of Legal Counsel and served as acting head of the Office of the Solicitor General in the Clinton administration, is a very bright man. As more fully discussed here, Dellinger was one of the seven former heads of the SG’s Office–four Democrats and three Republicans–who in 2002 sent a letter to Senator Leahy protesting Leahy’s demand for SG Office documents relating to Miguel Estrada, whose nomination to the D.C. Circuit was then pending. In that letter, Dellinger and company “attest[ed] to the vital importance of candor and confidentiality in the Solicitor General’s decisionmaking process” and pointed out that the “unbridled, open exchange of ideas . . . simply cannot take place if attorneys have reason to fear that their private recommendations are not private at all, but vulnerable to public disclosure.” The letter further stated that “[a]ny attempt to intrude into the Office’s highly privileged deliberations would come at the cost of the Solicitor General’s ability to defend vigorously the United States’ litigation interests.”

Dellinger, it turns out, now has a very different position on SG Office documents relating to John Roberts. In Dellinger’s words (from his op-ed Washington Post):

“Unlike Estrada, Roberts was writing memos not as a civil service lawyer but as a senior political appointee in a policymaking position, and the judgeship at stake isn’t any federal judgeship but the Supreme Court itself. These factors and the announced release of volumes of earlier memos to the White House counsel–undistinguishable as a matter of law from memos to the solicitor general–suggest that the memos to the latter will be made public as well.
Are Dellinger’s factors persuasive? I don’t think so.

First, the fact that Roberts was a “senior political appointee in a policymaking position” makes the public’s interest in not chilling the candor of communications relating to governmental decisionmaking stronger, not weaker, than in Estrada’s case. Confidentiality is not, as Dellinger’s op-ed would seem to suggest, some sort of civil-service protection for government employees. It is instead designed to protect the decisionmaking process. As Dellinger’s 2002 letter correctly states, “High-level decisionmaking requires candor, and candor in turn requires confidentiality.”

Second, apart from the fact that I’ve never before heard anyone call a judgeship on the D.C. Circuit just “any federal judgeship,” I don’t see the relevance of the fact that Roberts’s nomination is to the Supreme Court. Virtually every lawyer in the SG’s Office, I suspect, has imagined himself a future judge or Supreme Court justice, but no one of course knows what the future holds at the time he’s working in that office. You sacrifice the long-term interest in ensuring an environment that promotes candor if you’re willing to disclose records on someone who later becomes a Supreme Court nominee. Besides, there are ample alternative means–interviewing career deputies and attorneys who worked with Roberts–for satisfying any legitimate interest in determining Roberts’s fitness.

Dellinger is a wordsmith, and his second sentence quoted above is, strictly speaking, a prediction that the SG documents “will be made public” rather than an argument that they should be. His prediction may well prove to be right–for the sake of the interests cited in his 2002 letter, I hope not–but his grounds for distinguishing Roberts’s records from Estrada’s aren’t convincing.

Judge Roberts: More Common Sense



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Maggie Gallagher has written an outstanding short piece on Judge Roberts’s dissent last Friday from the D.C. Circuit’s ruling that police violated a criminal’s Fourth Amendment rights when they searched the trunk of a car driven by an unlicensed driver, with no registration and stolen tags, and found a gun. Was it “unreasonable” under the Constitution for police to search the trunk? As Maggie quotes Judge Roberts’ dissent: “Sometimes a car being driven by an unlicensed driver, with no registration and stolen tags, really does belong to the driver’s friend, and sometimes dogs do eat homework . . . .”

Questions for Roberts



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Both Walter Dellinger, in today’s Washington Post, and Vikram David Amar, in today’s New York Times, argue essentially as I have done here at Bench Memos (and as Ramesh Ponnuru argues in the latest NR), that Judge Roberts can properly be asked all sorts of questions about his views of past cases, even if the same issues might predictably come before the Court again. Dellinger and Amar may have ulterior motives, thinking that Roberts can be defeated if his views seem (from where they sit) “extremist.” But their arguments are worth reading, and I’ll place my bet that a forthright and cogent constitutionalist can get through the process, even with a hostile Arlen Specter in the chair.

Frist Wants August Hearings



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He’s a United, Not a Divider!



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From the Religion News Service [Texas Star-Telegram sub. required]:

Religious conservatives are always ready to mistrust the elite educational, cultural and political institutions of our nation, and they often draw on that mistrust in seeking to galvanize their own constituency.



Roberts appears to be a person who has managed to come through such institutions, gaining the greatest value possible from them while retaining recognizably conservative religious, moral and political values. This kind of person could help bridge the red-state/blue-state cultural divide and symbolize that it need not be an eternal or immutable division.

A Bit of a Response to Matt Franck



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I’m glad that I’ve eased Matt Franck’s mind a bit, but I hasten to offer this correction on a point he raised: My own piece had been written and put to bed before the news had come out that Joy Clement had been called by the White House around 1:30 on that improbable day. But I’m holding Matt to his promise to visit me in jail if the occasion should ever arise—and it won’t do for him to plead that he is busy visiting his other friends in jail.

Apart from that, though, I want to say how touched I was by the tone of Matt’s commentary. He was kind enough to register his respect and friendship before he went on to his criticism, but I want to assure my friends that I don’t take their disagreement with me as marking any want of respect. They needn’t apologize, and they should know that I wouldn’t feel diminished if I can be corrected by friends. I can imagine now the pieces to come: “Well, now that I know that Hadley Arkes will not feel diminished, I can let him have it …” As Betty Davis said, fasten your seat belts, this is going to be a bumpy ride.

Ted Kennedy Doesn’t Like Us



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He’s thinks we’re getting super secret information from the White House.

SCOTUS Cannibalism



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