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Bench Memos

NRO’s home for judicial news and analysis.

The American Prospect Goes After Roberts



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According to this article, he’s a threat to the Constitution.

Hewitt Transcript



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The transcript of my interview with Hugh Hewitt (joined by Instapundit’s Glenn Reynolds) is here.


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Feeble, Laughable PFAW—Part II



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Responding to the lies that the Left will sling at John Roberts would be a full-time job for an army of lawyers. Here’s my account of the first judicial opinion (out of a grand total of five) that I’ve looked at in PFAW’s hit job:

PFAW attacks Judge Roberts for his unanimous opinion in Hedgepeth. D.C. had in place a policy that provided that minors who committed offenses in Metrorail stations be taken into custody. D.C. did not have a similar policy for adults. D.C. police applied the policy to a 12-year-old girl who ate a french fry in a Metro station. In a straightforward application of Supreme Court precedent, the district court, which described the policy as “foolish,” ruled that it did not violate the Constitution, and all three appellate judges agreed. (D.C., incidentally, had changed the policy even before the case was filed.)

Judge Roberts’s opinion in this case clearly illustrates that he understands the role of a judge. PFAW’s highly selective quotations fail to include the following:

“The question before us … is not whether these policies were a bad idea, but whether they violated the Fourth and Fifth Amendments to the Constitution.”

“The district court had and we too may have thoughts on the wisdom of this policy choice—it is far from clear that the gains in certainty of notification are worth the youthful trauma and tears—but it is not our place to second-guess such legislative judgments.”

PFAW gives the reader the mistaken impression that Roberts states that the police merely made the child cry. But as Roberts states in the opening paragraph (and elaborates elsewhere), the child “was booked fingerprinted, and detained until released to her mother some three hours later—all for eating a French fry in a Metrorail station. The child was frightened, embarrassed, and crying through the ordeal.”

Thus, PFAW’s charge that “Roberts appeared dismissive of the serious concerns” raised by the case is simply ridiculous.

Say What?



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K-Lo reports that Ted Kennedy described — on the Senate floor this very morning — America’s “mainstream” as “conservative”? He invites us to think that he would support Roberts if he is in it. This is the same Senator Kennedy who infamously opposed Bob Bork because he — Bork — was “out of the mainstream” Does that mean Teddy will oppose Roberts if he turns out to be a liberal?

Ann Coulter, on the other hand, says she is against John Roberts. Not really a conservative, she says.

Beam me up, Scotty.

Re: Re: Bum Rap



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Following up on Andy’s post, I would only suggested that I am not sure that the arguments a lawyer makes are always “highly relevant,” but rather, I think that there is something of a sliding-scale of relevance. Thus, if an attorney works for a public-interest group, where they take the case to promote a particular agenda—as was the case with Justice Ginsburg and her work with the ACLU—then I think the arguments made are highly relevant given their ability to control their message and pick their arguments If, however, an attorney makes an argument on behalf of the government (or, a typically hierarchical firm), then I think it is less relevant. In those cases, it is much more likely that they are implementing someone else’s view of the law—one which may be plausible or even correct, but one which may be different from how the particular lawyer sees the law. This is true even for a big partner, who may make an argument that the client wants to see made (so long as it is within the limits of the law), even though he disagrees.

Accordingly, in the Rust case, Roberts almost assuredly was not the person who made the decision to challenge Roe, but rather he implemented the administration’s position. Or to take another example, Miguel Estrada worked in the Clinton Justice Department, and almost assuredly made arguments with which he disagreed, but which were within the limits of the law and effective advocacy of his client’s interest. In either case, I’m not sure how relevant the arguments they made are to how they would approach that issue if it came before them as a judge, and that is what the Left is trying to derive from Roberts’s language from the brief in Rust. There is certainly no disputing that Roe has been attacked from the Left (see, e.g., Kitty McKinnon) and the Right as a poorly reasoned decision, but if someone is going to make that case regarding Roberts’s view of the decision, then I think it should be done on the basis of something more substantial than his advocacy in Rust.

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RE: Bench Memos on Network TV



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Evidently Jake Tapper focused on Bench Memos quite a bit, even mentioning the url as he typed it on World News Tonight last night, I’m told.

Conservatives Are Mainstream? Senator Kennedy, Is That Really You?



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Ted Kennedy on the floor this morning:

What all Americans deserve to know is whether Judge Roberts respects the core values of the Constitution and falls within the conservative mainstream of America along the lines of Justice Sandra Day O’Connor.

Go North, Old Man



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Patrick Leahy on the Senate floor this morning:

I look forward to the time when the membership of the United States Supreme Court is more reflective of America as our neighbor, Canada is more reflective of their country.

Ann Coulter



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is a brilliant strategist! If she doesn’t like the Roberts pick, how can Schumer keep his opposition up?

Feeble, Laughable PFAW



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People for the (Un)American Way’s predictable attack on John Roberts is remarkable for its feebleness. Once you get past the breathless adjectives that PFAW was ready to invoke against anyone the President would have nominated, PFAW leads with four briefs that Roberts co-authored as Deputy Solicitor General in President George H.W. Bush’s administration.

The American people fully understand that a lawyer is obligated to advocate the positions of his client. That is exactly what Roberts did.

PFAW’s characterization of the government’s briefs is also amusingly disingenuous. For example, PFAW claims that the government’s brief in Lee v. Weisman, which argued that the Establishment Clause should be construed in a manner that is faithful to American traditions (imagine that!) was “radical”. It is, of course, groups like PFAW, who seek to have the courts strip “under God” out of the Pledge of Allegiance and wipe out the American tradition of promoting respect for religion generally, that are the real radicals.

Don’t expect these inane attacks to stop, as PFAW needs to try to justify its existence and raise money.

Bench Memos



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showed up on a computer screen on Good Morning America this morning. Wonder if that’s a first–network TV. For Bench Memos, at least.

Re: “Bum Rap”



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Let me take slight issue with Brother Alt, for whom I have great respect and admiration.

I think Robert is entirely correct that it is the lawyer’s function to be an advocate and therefore that it is a mistake to assume there is necessarily consonance between what a lawyer argues as a litigant and what he would rule as a judge. That said, though, lawyers have a professional responsibility only to make arguments that they believe are supportable under the law as correctly understood. Thus, while an argument made as an advocate is not dispositive of what a lawyer thinks, I think it’s highly relevant.

More importantly, as a tactical matter, nothing looks worse than when a witness in a hearing tries to walk away from prior statements he has made (and this would be especially so for witnesses who are nominees and are being asked by Senators about statements made to the United States Supreme Court).

Roe is crucially important to this debate for reasons that far transcend abortion. It is important to establish, here and now, the principle that a belief that Roe was poorly reasoned and wrongly decided is an entirely respectable view to hold – indeed, it seems now even to be the view of the majority of the Supreme Court, which relies on stare decisis to sustain Roe while pretty much shredding its underpinnings.

If Judge Roberts’ position is that Roe is bad law and that what he said in his brief was right, I think he will make a much better impression in his testimony if he says so outright. And even those who are pro-abortion, if they are reasonable, would have to say that a belief that Roe is a badly reasoned decision, and a belief that our system’s default position should be democratic outcomes rather than judicially imposed policies, is a mainstream position.

Enviros Defend Roberts



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While MoveOn.Org, the NYT and others suggest John Roberts would be a threat to environmental laws, it is interesting to note that environmentalist litigators take a different view. The folks at Community Rights Counsel (with whom I disagree on quite a bit), regularly litigate in defense of environmental regulations. As detailed in this op-ed by CRC counsel Tim Dowling, their view of Roberts opinion in Rancho Viejo is the same as mine:

Another short-lister — Judge John G. Roberts Jr. of the U.S. Court of Appeals for the District of Columbia Circuit — created a stir by opining on the same issue. In Rancho Viejo v. Norton (D.C. Cir. 2003), the court upheld federal species protections as applied to a real estate developer whose proposed housing project threatened endangered arroyo toads. The panel had little trouble concluding that the commercial housing development fell within the Commerce Clause power.

In dissent from a denial of rehearing en banc, however, Roberts criticized the panel for focusing on the developer’s overall conduct rather than asking whether the specific activity being regulated — harming the toads — is commercial or would substantially affect interstate commerce. According to Roberts, applicable Supreme Court precedent compels the latter inquiry. Moreover, he viewed the panel’s approach as in tension with the Fifth Circuit, which used a much different rationale in upholding federal species protections.

Needless to say, Roberts’ dissent was not well-received by the environmental community. But it should be viewed in context. He did not express a position on the constitutionality of single-state species protections, but instead insisted that additional review would “afford the opportunity to consider alternative grounds for sustaining” them. And it is indisputable that federal appellate courts have adopted different rationales in upholding these protections, a relevant consideration in deciding whether to grant a full-court rehearing.


O’Connor on the Roberts Nomination



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According to this post, she’s thrilled.

The NYT’s Distortion



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Regarding the New York Times less-favorable-to-Roberts editorial: It adds calumnies to its errors. For instance, after suggesting that Bush’s judicial nominees threaten to hold laws against air pollution, unsafe working conditions, and child labor unconstitutional, the Times writes: “He dissented in an Endangered Species Act case in a way that suggested he might hold an array of environmental laws, and other important federal protections, to be unconstitutional.” This is simply a gross misrepresentation of the Roberts opinion in the Rancho Viejocase. Judge Sentelle (for whom I clerked years earlier) argued that the ESA could not be applied to an intrastate species lacking in commerical value. Judge Roberts, on the other hand, pointed out that the D.C. Circuit’s jurisprudence on the matter was incoherent and in direct conflict with the rationales adopted by the other circuits in addressing the issue. Judge Roberts made explicit that cleaning up this doctrinal confusion was his reason for urging en banc review of the case. Yet even if Roberts had echoed the Sentelle view (and he did not), this would have little, if any, imapct on the bulk of federal regulations, particularly those addressing air pollution and the like.

For those interested (or who, perhaps, need a sleep aid), I have a 98-page article in the Iowa Law Review dissecting the potential impact of aggressive federalism arguments on environmental laws. (Note: The most relevant portion is from page 403-417.) Even were the ESA to be limited, the various pollution laws — nearly all of which directly regulate economic activity as such — would not be touched. The Times here is attacking a mythical bogeyman that has no relation to the judicial opinions of Judge Roberts nor to the judicial doctrines some conservatives actually advocate.

RE: WaPo on Roberts



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That is, as mentioned earlier, a fairly favorable editorial on the Roberts nomination today. It begins:

In nominating Judge John G. Roberts Jr. to the Supreme Court, President Bush picked a man of substance and seriousness. Judge Roberts has served only briefly on the U.S. Court of Appeals for the D.C. Circuit, but he was previously among the country’s best-regarded appellate lawyers, both in private practice and as deputy solicitor general during the administration of George H.W. Bush. Judge Roberts is a conservative, but he has never been an ideological crusader; he has admirers among liberals. If confirmed as the successor to Justice Sandra Day O’Connor, it is likely that he will shift the Supreme Court toward the right. But his nomination is not a provocation to Democrats — as some other possible nominees would have been. Mr. Bush deserves credit for selecting someone with the potential to attract broad support.
Yet the Post also makes the mistake of echoing liberal talking points when it says Roberts “argued” before the Supreme Court that Roe should be overturned. Yes, Roberts was one of multiple lawyers on the brief (the sixth one listed, as detailed here), but he did not argue the case. That was his boss, then-Solicitor General Ken Starr. Moreover, Lawrence Tribe, who argued the case for the other side, has said the references to Roe in the brief were not gratuitous and necessary for the argument the government sought to make. The Post should correct the record on this point.

“Bum Rap”



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To his credit, Lawrence Tribe, who argued against Roberts in the now famous abortion case of Rust v. Sullivan, just said on Fox News that it would be a “bum rap” to hold Robert’s language from his brief recommending the overturning Roe against him, given his role as an advocate for his client. This will be an important point, not just for this case, but for others. Inevitably, the tin-foil-hat set will be combing though every brief he has ever written in order to courts in order to find unpopular positions. But lawyers necessarily make arguments that they would not necessarily endorse as a judge. Lawyers commonly write things which contradict their judicial philosophies. For example, many textualists believe that courts should never look to legislative history. Even so, very few textualist lawyers would fail to make an argument from legislative history if it had the potential to benefit their client. The other argument you are likely to see is that he is somehow pro-corporation, or pro- some particular type of corporation because his firm represented them. Again, however, lawyers often represent clients with whom they disagree. Anyone doubting this need only know that most lawyers at big firms lean to the political Left, and yet a fair number of them have to represent big tobacco.

re: Lieberman



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Smart, suscpicious man e-mails:

K-Lo, I saw your bench memo on Lieberman. Not that I would ever by cynical or anything, but could it just be possible that Schumer got to Lieberman b/w last night and this morning to advise Joe that he’d been “misinterpreted”? I’m thinking of two things, (1) Isn’t Schumer now the head of the Dems Campaign Committee which recruits candidates and decides how party money is allocated for races (I seem to recall that Schumer had to agree not to run for governor in order to get that high party post in the Senate), and (2) didn’t we hear after Lieberman bolted party orthodoxy by voting to confirm Gonzales for AG that the Dems were thinking of a primary challenge against Joe in ‘06? Just wondering …

Get a Load



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Of Linda Greenhouse’s front-page “news analysis,” in which it is posited that Scalia and Thomas wish to “recaptur[e] a distant constitutional paradise in which the court was faithful to the original intent of the framers” and are “at the margin.” Also, they are flame throwers. I am beginning to think Greenhouse might be a liberal.

This Morning



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REMARKS BY THE PRESIDENT TO THE POOL
Rose Garden

7:30 A.M. EDT

THE PRESIDENT: Good morning, how are you? I just had a cup of coffee with the nominee and told him I thought things were off to a very good start for his nomination. I’m not surprised — he’s highly qualified for the job. He’s the kind of person that will bring great dignity to the Court. Judge Roberts is off to the Senate this morning to begin his consultations. I’m confident the senators will come to realize what I’ve come to realize: We’re lucky to have a man of such wisdom and intellectual strength willing to serve our country.

I’m also confident that the process will move forward in a dignified, civil way. In my conversations with senators last night, we discussed how important it is that Judge Roberts get a fair hearing, a timely hearing and a hearing that will bring great credit to our nation and to the United States Senate. And so I told Judge Roberts over coffee that we’ll provide all the support that’s necessary for the senators to be able to make up their minds, that we will push the process forward, because he and I both agree that it’s important that he be sworn in prior to the Court reconvening in October, and that I wished him all the best.

So I appreciate you coming by for coffee this morning.

JUDGE ROBERTS: Thank you very much.

END 7:32 A.M. EDT

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