Bench Memos

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The Secret Handshake


When I joked yesterday about the Federalist Society’s (non-existent) secret handshake, I was poking fun at the conspiracy kooks out there. So predictable is the New York Times, that it wrote this in its editorial today:

“The American public has little to go on in evaluating his politics or legal philosophy. But at the same time, leaders of conservative groups seem to know enough to declare that they are delighted with his selection and confident that he will side with them on the court. This should not be a matter for discussion only among the members of cloistered clubs who know the secret handshake.”

Speaking of secret operations, I think the New York Times editorial board’s deliberations would qualify.

White House Confirmation!


This morning, White House Chief of Staff Andy Card told Bill Bennett that John Roberts “a conservative”–not once, but four times on Bennett’s nationally syndicated radio show, Morning In America.


Polling Roberts


USA Today:

51% of Americans expect “a major fight” over Roberts in the Senate. But by 59% to 22%, those surveyed say he should be confirmed for the job.

Roberts’ favorable-unfavorable ratings are a muscular 46%-13%; 19% haven’t heard of him.

Nonsense on Stilts


That Jonathan Turley piece in yesterday’s LA Times that’s come up a few times here is remarkably silly. Turley breathlessly reports Senator Durbin’s account of a private meeting between Durbin and Judge Roberts in which Durbin supposedly flustered Roberts by asking “what he would do if the law required a ruling that his church considers immoral.” Turley says that Roberts’s supposed answer—that he would recuse himself—is the wrong answer, raises “difficult questions of fitness,” and dramatically transforms the whole confirmation process.

Turley’s essay is nonsense on stilts. Turley seems to reject the elementary idea that there might be extraordinary circumstances in which a judge would have to recuse himself in order to avoid being actively complicit in evil. Would Turley himself, as a judge, order a coercive abortion if, hypothetically, that was what the law required? But there is no reason to believe that Roberts would anticipate any such circumstances.

Turley’s transparent effort (in concert with Durbin, evidently, as Kathryn notes) to concoct an issue is yet another illustration how ridiculous and desperate the Left is.

The Senator and the Nominee


Jonathan Turley confirms Durbin was his leak on what has become the “religious test” conversation with Judge Roberts. Though Durbin’s office is denying the accuracy of Turley’s account.


Testing Catholics


In addition to the points already made by Mark and Kathryn, I note that Rule 610 of the Federal Rules of Evidence provides: “Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness’ credibility is impaired or enhanced.” There appears to be no “Catholic exception” – I’ve double checked.

Of course, the rules of evidence only apply at significant searches for truth, like the trial of a gambling indictment or a disgruntled employee’s workplace harassment complaint. They do not govern hearings at which esteemed members of the U.S. Senate, when not comparing U.S. soldiers to Pol Pot, decide who is worthy to sit on the U.S. Supreme Court.



“You wouldn’t run for the United States Senate or for governor or for anything else without answering people’s questions about what you believe. And I think the Supreme Court is no different.” — Sen. Evan Bayh (D-In.), CNN “Inside Politics,” July 25, 2005

Bring It On. . .


I can see it now:

“Judge Roberts, are you now, or have you ever been, a member of the Federalist Society?”

It will be interesting to see which Senators will be goaded into this line of questioning about the Federalist Society, a highly respected group of conservative and libertarian lawyers “founded on the principles that the state exists to preserve freedom, that the separation of governmental power is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.” In other words, principles that the vast majority of Americans agree with and admire.

It was founded in 1982 largely in response to the problem that “law schools and the legal profession are strongly dominated by a form of orthodox liberal ideology,”and that these liberal views are largely “taught simultaneously with (and indeed as if they were) the law.”

The Society seeks to promote awareness of the principles of our constitutional system such as “individual liberty, traditional values, and the rule of law.” It sponsors forums to do so all around the country, and to an exceptional degree includes diverse and dissenting points of view, in the interest of healthy intellectual exchange and openness.

I think many people participate in Federalist Society events (and probably forget to pay dues sometimes), are friends of the Society, support it, and help pass the word so that interested law students and young associates in law firms will have exposure to all the excellent educational and professional opportunities it offers.



Let me urge my fellow Federalist Society members that no matter how hard they’re pressed, don’t give up the secret handshake.



Dick Durbin and others seem to be getting close to the line, so here’s a reminder: the Constitution provides that “no religious test shall ever be required as a qualification to any office or public trust under the United States.” Enough of the badly disguised Catholic bashing (and by that I mean, practicing Catholics).

Another One for the Common-Sense File


Senator Obama was worried that Judge Roberts might be so super-smart that he might lack something more important than brains: common sense. Senator, add this item to the growing “common sense” file on Judge Roberts.

From the New York Daily News:

On Friday, the U.S. Court of Appeals for the District of Columbia released a decision in which John Roberts, now Supreme Court nominee, was the dissenting voice in a 2-1 ruling. Said ruling reversed a gun-possession conviction because police had, according to the court, overstepped their bounds in searching the trunk of the suspect’s car. To be more precise, the car the suspect was driving (with a suspended license).

The cops opened the trunk after a records check showed that the vehicle bore stolen temporary license tags. And, lo and behold, they found a .25-caliber pistol.

Showing more common sense than did his colleagues, Roberts wrote, “Stolen tags often accompany stolen cars.” He also wrote: “The best [the suspect] could do was tell the officers . . . that the car belonged to his girlfriend. 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.”

NARAL vs. John Roberts


Beyond the Internet: Bench TV


Here’s Ed Whelan debating Nan Aron on MSNBC earlier.

Durbin: There You Go Again. . .


Judicial Confirmation Network just issued this press release on Dick Durbin’s latest repeat offense.

Testing Catholics


In addition to the points already made by Mark and Kathryn, I note that Rule 610 of the Federal Rules of Evidence provides: “Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness’ credibility is impaired or enhanced.” There appears to be no “Catholic exception” – I’ve double checked.

Of course, the rules of evidence only apply at significant searches for truth, like the trial of a gambling indictment or a disgruntled employee’s workplace harassment complaint. They do not govern hearings at which esteemed members of the U.S. Senate, when not comparing U.S. soldiers to Pol Pot, decide who is worthy to sit on the U.S. Supreme Court.

Check out MSNBC at 12:15


Ed Whelan will be on MSNBC live from 12:15 to 12:45 debating Nan Aron.



It is a testament to the stature and influence of the Federalist Society that so many on the Left appear to care whether John Roberts was ever a Federalist Society member. Today’s front-page (!?!) article in the Washington Post explores this question further.

The article quotes me as speculating that Roberts “probably realized pretty quickly he could take part in [Federalist Society] activities” without being a dues-paying member. For the record, I would like to clarify that I have absolutely no basis for any insights on this matter. The point I made to the reporter (in a conversation that I understood to be “on background”) was that the Federalist Society typically has a two-tier pricing system for its events–a lower price for members and a slightly higher price for non-members–and that speakers at its events are, as I understand it, typically admitted free. If I made the speculative comment that the article attributes to me, it was in a context that made clear to the reporter that I had no knowledge about anything related to Roberts’s membership or non-membership. It is misleading that the quote is used in a manner that might suggest otherwise.

“No Catholics Need Apply”?


Is Dick Durbin looking at a religious test for judges again? (I’ve always found the “No Catholics Need Apply” moniker misleading though—it’s any religious person who doesn’t agree with Dick Durbin he’s got beef with. Religion just one trick in his bag.)



This Federalist Society thing seems like quite a distraction, and one due probably to a misfire strategy from the White House, making a big deal out of Roberts not being a member of the Federalist Society. I tend to agree with this guy:

“What matters is whether he hung out with them and not whether he signed the form or wrote the dues check,” said David Garrow, a law professor at Emory University. “What’s important is the intellectual immersion.”
Basically, that conservative lawyers know and think highly of Roberts is not irrelevant. It’s kinda helpful to know. That he participated in some FedSoc stuff over the years is normal. The group–which you’d think were right out of the Da Vinci Code it is given such an air of mystery and nefariousness in the MSM–obviously wasn’t a formative experience in the justice’s life. But the corrections-insisting about his “membership” seems like it has just provided–what’s that phrase, Desperate Dems?–with a very silly controversy in a nomination battle that doesn’t have much for them to work in their effort to oppose and obstruct.

Defending Miranda’s Right


The New Republic’s latest issue showcases liberal tactics at their worst. Senior editor Michael Crowley hacks out a predictable hit piece on Manuel Miranda, chairman of the Third Branch Conference, who, as senior nominations counsel to the Senate Judiciary Committee and nominations counsel to Majority Leader Bill Frist, created many of the political messages and structures we are using today in the Supreme Court fight, including the Senate’s “Miranda Plan” for a Supreme Court nomination.

Miranda’s efforts helped transform an issue, once considered just below campaign-finance reform in importance, into a GOP winner. On October 3, 2003, Miranda told The Hill newspaper that Republican candidates would sweep the South and defeat Tom Daschle based on the message of obstruction of judges, and more importantly, he worked to make it so.

In part, he got everyone’s attention through the use of language that went past dry lawyer’s parlance and, in part, he did it by putting himself at risk where others might have cowered and wrung their hands.

A hit piece from TNR is, of course, a badge of honor for conservatives.
Two years ago TNR put my boss, Committee for Justice Chairman Boyden Gray, on its cover and went into a tizzy over his collaboration with religious conservatives in the judicial confirmation wars. It was a clumsy attempt to divide Gray from other conservatives and quell his enthusiasm for the fight. It didn’t work.

The current article on Miranda is similarly ham-fisted.

TNR hit pieces have three possible purposes: to play to its generally liberal audience, discredit or marginalize a target who has proven too effective, or to discourage that target.

Crowley no doubt satisfied left-wingers. And there will always be short-sighted conservatives affected by a liberal hit on one of their leaders, the kind of people Theodore Roosevelt described as the critics of “The Man in the Arena.” Such people help explain our weaknesses on the Right. But Miranda’s effectiveness as a leader is based solely on his talent and ability to see the play before it happens, not on the loyalties of the weak-kneed.

And an effort to slow down Manny Miranda, I have found, is like trying to evaporate an iceberg with a hair dryer. It will, at most, annoy him.

Particularly ironic in TNR’s attempted putdown is the number of sloppy errors and transparencies. My favorite is the description of Miranda leading a conference call in an “untucked shirt.” In fact, it was a linen Cuban guayabera that is supposed to be worn untucked. Miranda is famous for them. So much for cultural sensitivity.

A second slight is the description of Miranda having attending a “small law school.” In fact, Miranda attended the largest law school of the University of California.

Of course, Crowley recycles all the Democrat spin over Memogate, the scandal over the discovery of unprotected Senate Democrat documents showing corruption and probably unlawful activity in the blocking of judicial nominees. In 2004, Democrats created a smokescreen, aided by less than nimble Republicans, to hide their own wrongdoing.

The media ate it up as they do all Washington leak investigations involving Republicans. In fact, there was no leak at all as the Senate itself defines it. And no, Miranda wasn’t fired. No, he was never found to have violated any Senate rule, ethic, or law. He never hacked or downloaded 4000 some documents, another favorite of the Left. And Miranda never stole a thing: the D.C Court has already ruled on the public interest in Senate documents.

Crowley displays zero interest in what the Democratic documents actually spelled out, or the fact that Miranda acted in keeping with the Code of Ethics for Government Service. In fact, Miranda was so unperturbed by the Democrats’ false charges that he sued for a Declaratory Judgment to get the court to address the Democrats’ allegations and wrote a Law Review article to boot. (You can read more about the politics, ethics, and law of Memogate at

Although noting that Miranda came out of Memogate as a hero to social conservatives, Crowley’s thrust is to paint Miranda as a “pariah”
and “a forgotten footnote.” He writes: “For much of last year, Miranda was unemployed, and he was forgotten as the judicial wars temporarily subsided during the 2004 election campaigns.”

It would have taken a few simple questions to learn that Miranda has been running conference calls on judicial nominations since May 2004, keeping together the coalition he helped assemble, that he was invited to raise money for Senate campaigns, and speak on campuses all over the country.

Presumably it would have undermined Crowley’s thesis to report that at a recent Republican National Lawyers’ Association event, and other gatherings, I have seen rooms of people erupt in applause when Miranda is introduced. And it is not surprising that Crowley leaves out entirely that former Attorney General Ed Meese brought Miranda to the Heritage Foundation as a Visiting Fellow. Many conservatives in Washington would love to be that kind of pariah.

Crowley also digs up a fiction based on a half truth about Miranda’s role in Georgetown University’s 1989 alumni litigation. I was senior news editor at The Hoya newspaper and know a little about that case. Had Crowley looked into it, he might have learned that Miranda’s successful efforts salvaged the Georgetown Alumni Association’s assets, saved 40 jobs, and that Miranda defeated the famously aggressive firm of Williams & Connolly on ten counts of summary judgment.

In fact, Crowley missed entirely that Manuel Miranda has been a hero in Washington for over two decades for his efforts to keep Georgetown University authentically Catholic, efforts that touched every Catholic college in America. And Miranda became a pro-life hero when he got Pope John Paul II himself to force Georgetown to de-fund a pro-choice advocacy student group.

Crowley speculates as to why reporters keep going back to Miranda for quotes. It may be the same reason why leaders on the Left are afraid to debate him: he is brilliant and does not hide from the truth. There is, of course, another reason. Hit pieces like Crowley’s are ginned up only because the target is threatening the Left and that makes reporters call Miranda, and that makes Miranda even more useful to his cause.


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