Bench Memos

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Whose Opportunity Is This Anyway?


Just a follow up to my piece today. Much has been said that this is a huge opportunity for the Right, and for the president to extinguish a debt owed to them. It seems to me, however, that this isn’t an opportunity to gain all much ground by the Right. Yes, the conservative bloc might pick up a vote on Roe if the president plays his hand right, but judging by his recent embrace the reasoning of Casey (the passage that Justice Scalia called the “sweet mystery of life” dictum — establishing a right to define one’s place in the cosmos) in the homosexual sodomy case, Lawrence v. Texas, Justice Kennedy isn’t going anywhere on Roe. So there are still 5 solid votes for Roe on this Court. For the left-wing nuts to be screaming that “a woman’s right to choose” hangs in the balance is a baldface lie, and they know it. But they can raise more money with that sort of overheated rhetoric. In reality, the Left realizes that this is their opportunity, not the Right’s. Even if the president gets this decision right, at best, Anthony Kennedy (gulp) becomes the crucial swing vote on just about every major issue facing the Court: homosexual marriage, reasonable regulations on abortion, religion in American life, the role of foreign law in American law, etc. Making Justice Kennedy the fulcrum of this Court may send shivers down the spines of many a conservative. So before everyone gets excited about the opportunity, think long and hard about the consequences of a mistake here. In the last several terms, Justice O’Connor voted more with Chief Justice Rehnquist than with any other Justice. So it is a bit of a misstatement to say that her seat is so much more important to gaining ground for the conservatives than his. The president has to get this right just to preserve the middle ground that O’Connor at times pulled back from the liberals on the Court. If he gets it wrong, things could be lost for a long time.

A SCOTUS Drinking Game


Take a shot (can you, this early?) every time an abortion activist awkwardly avoids the word “abortion.” This is from a Pacifica interview with Planned Parenthood’s current president (all the bold is mine):

KAREN PEARL: Sure. We are, of course, very concerned that the Justice that did step down was Sandra Day O’Connor, because she was the critical swing vote. She was the Justice who really held in her decisions the Constitutional protection for women’s reproductive health. And so, right now, we see reproductive rights, women’s health and safety to be extremely in danger, and because we do have this case before the Supreme Court, Ayotte v. Planned Parenthood, we particularly are focused on the requirement, if you will, that the President choose somebody who is very much in the mold of Sandra Day O’Connor, who understands the importance, the primacy of keeping women’s health and safety and who will continue to uphold the fact that women ought to be healthy and ought to have medical procedures that are safe for them.

KAREN PEARL: We’re not really prepared at this moment to talk about any particular nominee. What we are willing to say is that we will not accept any extremist or right wing ideologue as a nominee. We must make sure that whoever is put forward by President Bush is somebody who will protect women’s health and safety. And so, we will go through a careful process before we make any comment about specific nominees to vet where they stand on protecting women’s health and women’s safety.


Ah Yes, This Perfectly Encapsulates NR’s Feelings Toward Gonzales


A Dan Wasserman cartoon in today’s Boston Globe:

For a less witchy look, see our recent editorial against Gonzales for SCOTUS, and flashback to Rivkin/Casey pro-Gonzales for AG back in the day (not so long ago), Andy McCarthy also pro-AG for AG, as well as Shannen Coffin in the same effort.

“Left’s Last Stand”


That’s how Shannen Coffin frames the coming fight in an NRO piece today. Also on homepage: Byron York on the big corporations funding the Left’s last stand. Vincent Phillip Muñoz on O’Connor’s religion problem. Matthew Franck on the truth about a Lincoln quote. Of course, keep on checking here and The Corner for more.

Schumer’s Moment


“This is the moment he has been working toward for years,” Byron York writes in The Hill.


Schumer’s Ready to Obstruct


From the NYSun: Citing a recent bipartisan compromise on the treatment of judicial nominees, Senator Schumer said yesterday that Democrats on the Senate Judiciary Committee are prepared to use judicial philosophy as justification for thwarting any of President Bush’s nominees to replace Justice O’Connor.

The comments by New York’s senior senator raised the possibility that any nominee who is acceptable to most Republicans would be blocked by a filibuster in the Senate – the same situation that lawmakers had earlier avoided….

…”The bottom line is that the agreement said ‘extraordinary circumstances,’ but it also said the extraordinary circumstances are at the discretion of each of the individual senators,” said Mr. Schumer, who sits on the judiciary committee. “So you’d have to ask each of them, they signed it. But I’ve talked to some, and of course judicial philosophy could be within in the realm of extraordinary circumstances. For me, for sure, and I think for the people who signed the agreement, most of them.”…

…”To simply look at the resume and say, ‘You’re fine’ – I don’t buy it,” Mr. Schumer said. “I think that person’s views on environmental rights, on voting rights, on civil rights, on women’s rights – this is the most important appointment that a president can make.”



I’m completely guessing here, but I think Rove can joke because Gonzales is not really an option. Why? Because of the recusal issues Ed (see here and here)and Ramesh (see here) have gone into. He would be a partial justice and that’s a big deal–most especially on SCOTUS spot #1, but one any, really.



Now I wasn’t there, but I suspect that–the White House intention to disregard those worried about a Gonzales nomination–wasn’t quite the jokey Rove’s message, though it’s the Washington Post message of the morning.:

Rove, the president’s deputy chief of staff and the White House’s unofficial ambassador to conservatives, said Bush would disregard the criticism from groups that usually are friends. “He recognizes that’s just in human nature and ignores it,” Rove said in a luncheon interview with Washington Post reporters and editors.

Rove did not comment on the chances of a Gonzales nomination but at one point referred to him as “Justice Gonzales,” provoking laughter. He quickly added that he used the honorific because of the attorney general’s former tenure on the Texas Supreme Court, but among Bush aides he is typically referred to as “Judge Gonzales.”

Timing and Team


A friendly, successfuly familiar face will head up the White House SCOTUS nominee push, according to the Washington Post:

Bush, who flew to Denmark yesterday for the first stop in a four-day European trip, signaled that he may take longer to pick a nominee than expected, possibly waiting until late in the month instead of next week. But he left behind advisers to assemble a campaign-hardened team to push through confirmation of his eventual choice, an effort to be led by former Republican National Committee chairman Ed Gillespie.
Joining him at the White House, according to the source, will be another campaign veteran, Steve Schmidt, who was a rapid-response specialist last year and now serves as counselor to Vice President Cheney.

Rove would not confirm the personnel moves yesterday but described a selection process longer than originally anticipated. Instead of announcing a nominee next week, Bush could take weeks because of a variety of factors such as the need to focus this week on the Group of Eight summit in Scotland.

Well, These Women Know What They Want


A mass e-mail from Eleanor Smeal that went out last night:

We will not accept a Supreme Court nominee who would roll back women’s reproductive rights. The Feminist Majority has already done dozens of television, print, and radio interviews about what is at stake for women and urging the appointment of a woman at least as centrist as Sandra Day O’Connor who will not turn her back on women’s rights.

I testified for O’Connor during her confirmation hearings. If Reagan could appoint a woman who would often cast the fifth vote for women’s rights, so can Bush. But to make it happen, we will have to make our voices heard.

You Have Got To Be Kidding Me


Time SCOTUS photo gallery photo caption:

In 1987, positions the Ronald Reagan nominee had taken as an appeals court judge and Yale professor challenging the right to privacy and most free speech became the focus of a five-day Senate interrogation. His backpedaling in the event only hurt his credibility and helped sink his nomination
(Emphasis mine)

Open Minds


Lots of interesting information in Mike Allen’s Sunday Post analysis. The key line: “Democrats signaled that whoever the nominee is, their three likely lines of attack will be to assert the White House did not consult them sufficiently, then paint the nominee as ideologically extreme and finally assert that the Senate had not received sufficient documents about the candidate.” So much for entering the debate with an open mind.

More on Gonzales and Recusal


Today’s Washington Post article on three major cases on the Supreme Court’s docket next term provides more powerful evidence why those of us who admire Attorney General Gonzales should recognize that his recusal obligations as a Supreme Court justice would make him a terrible pick for the Court.

As I have previously discussed, the statutory recusal standards put in place in 1974 make it likely that Gonzales would have to recuse himself from virtually every case of importance to the administration, with devastating consequences for the administration’s legal prospects. For example, Gonzales’s recusal from the constitutional challenge to the federal partial-birth abortion act would almost surely result in the invalidation of that act (by a 4-4 affirmance of a lower-court ruling). (Ramesh Ponnuru’s article makes similar points.)

Gonzales would very likely have to recuse himself from all three major cases discussed in the Post’s article. (Recusal determinations turn on fact-sensitive inquiries, and it is possible, but I think highly unlikely, that a full understanding of the facts would alter this conclusion.)

Ayotte v. Planned Parenthood presents the constitutionality of New Hampshire’s statute providing for parental notification when minors have abortions. The questions presented include the standard of review of facial challenges to statutes regulating abortion. The United States can be expected to file an amicus brief in this case, precisely because the standard-of-review question directly affects litigation involving the federal partial-birth abortion cases. The attorney general would ordinarily take part in a decision like this. Recusal strike one.

Gonzales v. Oregon presents the question whether Oregon’s doctor-assisted-suicide law runs afoul of the federal Controlled Substances Act. The petitioner is the attorney general himself. Although I don’t think that being a named party in one’s official capacity in litigation necessarily triggers a recusal obligation, it is very likely, given the important and difficult issues that this case presents, that the attorney general has personally participated in decisions involving the litigation. Recusal strike two.

Rumsfeld v. FAIR presents the constitutionality of the Solomon Amendment, which requires universities, as a condition of their receipt of federal funding, to give military recruiters equal access. A number of schools, protesting the military’s policies on homosexual conduct, have challenged the law. It would be very surprising if Gonzales, both as White House Counsel and attorney general, had not personally participated in decisions about this case. Recusal strike three.

Given the unique and invaluable role that Gonzales has played and continues to play as the president’s top lawyer, there will undoubtedly be many other cases of great interest to the administration, both in the coming Supreme Court term and in later years, in which a Justice Gonzales would have to recuse himself. In light of these recusal obligations, it would seem to me that the only sensible conclusion that reasonable minds could reach is that it would be sheer folly for the president to nominate Gonzales to the O’Connor vacancy (or any other imminent vacancy).

Error by Consensus


From our editorial on SCOTUS up today:

The Court has helped bring into being a significant degree of polarization about itself — so much that it is not at all clear that any candidate could generate a consensus. What the president should instead seek is a candidate who is committed to the rule of law. The rule of law entails predictable, because rule-bound, judicial decisions. It entails respect for the intentions of the sovereign people who ratified the Constitution and who ratified the amendments to it: If what they ratified needs to be changed, change should occur through a lawful process of amendment rather than judicial revision. It entails some respect for precedent, but does not confuse the stability of Court-made “constitutional law” with fidelity to the Constitution.

Beat on the Extreme Right, Bush! Beat ‘Em Down!


In his Q&A with USA Today, could the president really have answered these questions too much differently than he did, given the questions? USA Today got the answers they wanted, I’m sure. I’m not as worried about what he said (indicator-wise) as I would be if I hadn’t read the questions:

Q: What do you make of the tone of the dialogue already and in particular the attacks on Attorney General Alberto Gonzales, who’s considered a possible nominee?

A: My call to the senators who will be leading the debate on either side is to help elevate this rhetoric so that the country will take a prideful look at the process, recognize there will be differences of opinion but that we can step back after it’s over and say, “That’s the way we ought to conduct a debate on something as serious as a Supreme Court nominee.”

Q: Do you think the attacks on Gonzales are out of line?

A: Al Gonzales is a great friend of mine. I’m the kind of person, when a friend gets attacked, I don’t like it. We’re lucky to have him as the attorney general, and I’m lucky to have him as a friend.

You Gotta Love “Our Guys”


Specter reminding us of his Borking, Hatch embracing Gonzales…(same article in the Globe).

Dems Won’t Rule Out Filibuster


Just More Liberal Reax


GayPatriot looks at some gay groups’ reactions to the O’Connor resignation (“sad day.”)

Ah, Yes…Specter…Specter and the Marbury Myth


Senator Arlen Specter will preside, for the first time in his long career, over the hearings for a Supreme Court nominee. I expect he will continue a pattern he has followed for a very long time as a rank-and-file member of the Judiciary Committee. Specter has pursued one subject with every nominee since the Rehnquist-Scalia hearings of 1986: the supremacy of the judiciary over all other institutional competitors as the final, authoritative interpreter of the Constitution, whose word is binding on all others.

Specter’s a senator, so he’s against such a notion, right? He thinks the legislative branch at least enjoys some parity with the Court as a constitutional interpreter, right? Wrong. Specter is Washington’s foremost advocate of judicial supremacy, and he has pressed every nominee for the last two decades to embrace a view of the Constitution in which the Congress of the United States is a subordinate agency, subject to the Court’s binding authority on all questions of its–the Congress’s–own power.

The last prominent public official in our national government to challenge this view was Attorney General Edwin Meese, who argued in 1985 that the rulings of the Supreme Court are not themselves the same thing as the Constitution itself. For stating this once-commonsense view he was roasted and denounced from coast to coast by newspaper editorialists, the law-school establishment, and the left in general. Specter too, it appears, was shocked and appalled to hear an attorney general restate the views of Abraham Lincoln.

Ever since then, Specter has dedicated himself with uncommon diligence to demanding of future Supreme Court justices that they declare themselves in favor of the proposition that the Congress is inferior to the Court when it comes to construing the Constitution. This puts Specter–now with the authority to speak as chairman of Judiciary–in the strange position of denigrating his own institution while unduly elevating the one whose future officeholders he is interviewing. Can it be any surprise that the nominees generally acquiesce in the view that, once sworn in, they will be the most powerful constitutional authorities in American politics?

Here is a sampling from this Spectral line of questioning over the years:
*To Robert Bork, 1987: “[U]nless there is an appeal and a change in the Court’s decision, . . . such a decision does establish a supreme law of the land that is binding on all persons and parts of the Government.”
*To Anthony Kennedy, 1987: “[A]s long as the Court has said what the Court concludes the Constitution means, then I think it is critical that there be an acceptance that that is the final word.”
*To David Souter, 1990: Marbury v. Madison is “the 1803 case where it was decided by the Supreme Court that the Supreme Court had the last word on what the Constitution meant.”
*To Clarence Thomas, 1991: “[T]he Supreme Court has the last word, no doubt in your mind about that.”
*To Ruth Bader Ginsburg, 1993: “The decision in Marbury v. Madison established the supremacy of the Supreme Court to decide constitutionality of issues, and there are some up to the moment who dispute that.”
*To Stephen Breyer, 1994: “We know the courts are supreme to both the Congress and the president because the court told us so in Marbury v. Madison. When the Constitution was formed, Congress was number one, the president was number two in the second Article, courts didn’t come up until Article Three, but all that was changed. It was renumbered in Marbury v. Madison.”
Probably no senator has ever been so slavishly devoted to the historical falsehood that Marbury v. Madison is the fount of judicial supremacy. In fact that anti-constitutional doctrine is entirely a fabrication of the last century or so, as some of the best recent scholarship has shown.

But what is so curious about Specter’s position is that a senator, of all people, should be so dedicated to an idea so inimical to republicanism and (most to the point, one would think) to the independence and integrity of the legislative power of which he holds a share. It is a shocking form of surrender to the tyranny of unaccountable judges–or it should be, if we are still capable of being shocked–and it is worse coming from someone in a position to oppose such tyranny, whose own institutional interest lies in doing so.

Yet another reason to regret the failure of nerve of the Republican Party when it briefly considered denying Specter the chairmanship after last fall’s election.



When asked on NBC’s Meet the Press whether he thought it appropriate to ask a nominee if he would uphold Roe v. Wade, Arlen Specter said: “I wouldn’t say, ‘Are you going to uphold Roe?’ But I would ask a nominee . . . ‘When you have a decision which has been in effect for decades, and people have come to rely upon it, what kind of circumstances, how extraordinary must they be’ ” to try to overturn it?

Specter, an outspoken advocate of abortion on demand, obviously believes precedent should be given a great deal of weight. But I assume he would have found Plessy v. Ferguson a bad case, despite precedent, as well as Dred Scott, Korematsu and scores of other decisions.

Appearing on CNN, Specter viciously attacked Bob Bork saying, in part: “I’ve been criticized a lot for questioning Judge Bork in one session for an hour and a half.” “If his ‘original intent’ stood, we’d still be segregating the United States Senate with African-Americans on one side and Caucasians on the other side.” Bork, who appeared on the network later in the day, said that he supported Brown v. Board of Education.

It is amazing just how intellectually dishonest (or is it ignorant) the chairman of the Senate Judiciary Committee is on these matters.

Writing for the DISSENT in Dred Scott, Justice Curtis said: “When a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we have the government of individual men, who for the time being have power to declare what the Constitution is according to their own views of what it ought to mean…”

Curtis sounds a lot like Bork and other originalists, doesn’t he? There is NOTHING in the Constitution that endorses or establishes slavery or segregation. Chief Justice Roger Taney was, indeed, a judicial activist. In striking down the Missouri Compromise, he held that slaves were property, among other things. And despite the clear wording of the Fourteenth Amendment, the Plessy Court established the doctrine of separate but equal. Even in Brown, the Court could not bring itself to overturn Plessy on Fourteenth Amendment grounds, instead relying on social sciences and so forth.

I’ve bitten off more than can be chewed here, but I felt Specter’s outrageous statements and attack on Bork needed to be answered.


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