Bench Memos

NRO’s home for judicial news and analysis.

A New Litmus Test?


Interesting that for two whole days, news coverage has been all about Attorney General Gonzales’s being a close friend of President Bush. Is this really earth-shattering news?

Yet all week, the media have largely ignored the outrageous new litmus test announced by the Bad Boy of the Senate Judiciary Committee, Chuck Schumer: Supreme Court nominees’ views on same-sex marriage.

Senators Clash on Questioning a Court Nominee:

“All questions are legitimate,” Senator Charles E. Schumer of New York, a Democratic member of the Judiciary Committee, said in an interview. “What is your view on Roe v. Wade? What is your view on gay marriage? They are going to try to get away with the idea that we’re not going to know their views. But that’s not going to work this time.”

A Media Point on Gonzales


Tim Graham from the Media Research Center points out:

The Washington Post sounds excitable on its front page this morning with the lede: “President Bush tried Wednesday to quell the conservative criticism engulfing Attorney General Alberto R. Gonzales, his longtime adviser, and scolded special interest groups for exploiting the debate over the next Supreme Court justice to raise funds.” Engulfing? If that’s true, why do we have to read deep into the article to find any Al-bashing conservatives? (It’s Manny Miranda and Paul Weyrich at Free Congress, who by themselves are not “engulfing” Gonzales.) Sean Rushton is also in the piece, putting it just so: “There’s a sense that the left is going to create dissension among the right, and the media loves that story . . . waiting for the president to tell the wackos to stuff it.”

When Post reporter Dan Balz tried to get Gary Bauer and Tony Perkins to declare Gonzales unsuitable, they both deflected the questions with vague answers. No “engulfing” there either.


“I’m not a candidate”


Conservative frustration over this SCOTUS opening vis-à-vis the president has to do, as I mentioned again a few posts ago, with an administration leak last week that Gonzales would be an attractive political choice for the president.

Then folks noted his schedule and realized he was making right-wing stomping groups some regular stops, as if he were campaigning.

If the White House is not seriously considering him, why doesn’t Gonzales write himself off for the spot? Well, maybe he did it a little yesterday in Denver:

“I’ve been asked since 2001 whether or not I’d consider going on the court, and I’ve consistently said, ‘I’m not a candidate for the Supreme Court’ – and that remains true today,” Gonzales said. “I love being attorney general. My job, currently, is to help the president make this decision.”
Of course, maybe he has to keep himself a bit in the ring as part of aforementioned genius plan.

Rovian Genius


No he didn’t set up the Red Sox win in some ingenius plan to orchestrate a Hillary senatorial loss next year.

Or did he? (Read more about Rovian genius from Greg Gutfield if you didn’t yesterday and need comic relief today.)

But here’s a maybe serious thought, from a reader, that has crossed my mind:

Is it possible that the SCOTUS nomination is being delayed so that
leftoid groups will wear themselves out on “potential” nominees? Say
Gonzales is not it – let his name come out, and everyone piles on.
Another name gets leaked – everyone piles on that guy. Eventually,
liberals sound rather silly if EVERY name that gets floated is deemed evil
and reactionary. Let them waste their shots in every direction and all
the whining will sound silly eventually. No doubt part of a Rovian evil
master plan.

Sister Souljah, No


I don’t think this is the White House strategy, but I simply don’t know. So a worthwhile e-mail:

Hey, there’s been a lot of talk over the past few days about how Bush could achieve a “Sister Souljah moment” by nominating someone who pro-lifers oppose. I think a nomination like that would instead be viewed by conservatives as a repudiation of Bush’s own principles and promises. It doesn’t take a political genius to recognize the devastating effect that a weak nomination would have on social conservative turnout in 2006 and 2008. A nomination like that would make the first President Bush’s violation of his “no new taxes” pledge appear trivial by comparison.
ME: Rick Santorum pays in an especially harsh way, I’d think.


Bush & Gonzales


From a loyal W supporter, in response to a Corner discussion yesterday:

I love NRO and read it regularly and support it financially. I also genuinely think I’d like all of you folks if I ever met you. Hope I will some day.

Still, at times you can be so self-absorbed, clueless, and pristinely impractical that it makes me shake my head in embarrassment for you. I refer to a frequent inability to dispassionately view the slightly differing perspective even of an ally (and I think you’d accept the President as an ally) when your precious and pure views face a ghost of a challenge.

Just the latest example: the President and Gonzales.

1). Is it possible that the President who has (as far as I can remember) stuck to his promises in the past, just might be planning to nominate a justice along the lines of Scalia and Thomas and has no plans whatsoever of putting forward Gonzales?

2). Is it possible that (knowing this) the President expects his supporters to trust him and is offended that they don’t?

3). Is it possible the President doesn’t understand why a loyal aid whom he has not put forward and is not planning to be put forward has to be preemptively attacked by ostensible allies? And, Jonah, I love the way you write and think, but don’t you think that defending Ashcroft from liberal attacks would have been pointless and unnecessary – a politician develops a thick skin and expects arrows from his opponents. But, getting fragged from within your own camp is much harder to take. Bush takes a constant dose of hatred and bile from the left. It must gall him from time to time when the right throws in its digs and (from his perspective) without present cause or historical basis.

Look, bottom line, attacks on Gonzales are only necessary if you fear the President will nominate him. I don’t blame the President for being piqued at the lack of faith of folks who are ostensibly in his camp. And please don’t say they aren’t attacks – that argument is at best a quibble.

Truly your friend and admirer…

Me: As I have said, I do believe Bush will name the right man (or woman). But I don’t think it is any way self-absorbed or clueless for anyone here or elsewhere to have some concerns. After all, it was an administration official who started this all in the first place–telling a reporter last week that Gonzales would be a great political legacy pick.

And as for President Bush’s comments, he’s gotta back his man. I don’t care so much that he’s his friend, which we know, but AG is W’s AG. He’s gotta have confidence in the man. The wording could’ve been different, but I’m not as freaked as I could be by them. I’m still hopeful. Because this is a president who stuck up for folks like Bill Pryor and Priscilla Owens and Janice Rogers Brown and John Bolton still. A president who sent Paul Wolfowitz to the World Bank. He gets it and can stand up to the Left, thank you very much.

But we shall see. And in the meantime, it is fair to look at and discuss who we’d like in a SCOTUS pick. Will it influence the White House at this point? Maybe, maybe not. But at least we’re (here, anyway) having honest discussions. I think that’s constructive. And what else are we do do judge-wise right now?

This Week


Bob Novak says Rehnquist will resign

O’Connor Was the Scotus Rabbi


Same Song Says So Much


Ted Kennedy, right after Bork was Borked in 1987: ”If we receive a nominee who thinks like Judge Bork, who acts like Judge Bork, who opposes civil rights and civil liberties like Judge Bork, he will be rejected like Judge Bork, just like that,” Senator Edward M. Kennedy of Massachusetts said on the Senate floor.

And 18 yeard later he remains in the same seat, singing the same tune for another SCOTUS opening today.



Brit Hume just reported on FNC that a spokesmen for Reid says his comments today were not an endorsement of Gonzales for the Court.

Reverse Kerry! He Voted Against Him Before He Voted for Him


Harry Reid is endorsing Gonzales for the Court, it would seem. But he voted against him for AG.

Reid Meet Reid


Harry Reid today:

Reid also chided conservatives for criticizing Gonzales while Bush was overseas. “I think it’s too bad the president has to respond in Denmark about statements from the far right,” he said. “People here have gone a little too far.”
The criticism started before the president left the States. But further, what’s this? Who’s this? Hmmm. Harry Reid calling the president a “loser” while he was in Europe back in May.

The Coming Web Attack from the Left


Byron York maps out the likely future, Scotus-wise.

“He Has to” Consult


What Consitution is Ken Duberstein reading? I just caught the tail end of him on Inside Politics and he said somewhat emphatically that the president will have to consult the Senate on his SCOTUS nominee. If you believe that read McCarthy and McCarthy again and Whelan and Berenson and I’m sure more I’ve forgotten to link to.



It stacks the deck against conservatives to include only invalidations of *federal* laws. That excludes every time the Court strikes down a local display of the Ten Commandments, a state ban on partial-birth abortion, a state death-penalty law, etc. If the federal government enforces federalism limits on the Congress, the test counts that as activism. If the Court subverts federalism by striking down local practices, the test excludes that altogether.

Reality TV!


RE: That Poll Question


From Gerry Daly:

I can’t get to my own darn blog to grab the link, but while that Gallup question you asked is an eye roller when looked at by itself, the way they did the survey is actually pretty fair, since they asked a similar question about the Democrats. They asked if people think it is very likely, somewhat likely, not very likely, not at all likely that the Democrats will try to block Bush’s nominee for “inappropriate” political reasons.

The result is extremely encouraging for our side, as 58% of all adults said that it is “very likely”. 28% more said it was somewhat likely. That means that 86% (!) of all adults think it is likely that the Democrats would engage in an inappropriate obstruction, compared to 12% who say it is unlikely of the Democrats to do so.

That result put a big ol’ smile on my face.

Activist Judges?


I’ve never particularly found the use of the term “judicial activist” all that useful because it can mean a lot of thing to a lot of people. But Paul Gewirz and Chad Golder write in today’s New York Times that, when you define “activism” as overturning federal laws, then the liberals on the Supreme Court are its least activist members. I find that to be a particularly strange definition of activism. Conservatives do not get upset every time a law is struck as unconstitutional. I don’t hear anyone seriously challenging the role of judicial review in modern law (although we all have scratched our heads at times about the proper role of the Courts). Indeed, there have been many a decision of recent years that conservatives were upset that a law was NOT struck down. Take, for instance, the McConnell decision on campaign finance reform (mea culpa — I helped defend the law in the lower courts in my capacity as a DoJ lawyer). There, conservatives were upset not because an activist court struck down a law, but because the Court strayed from the text of the First Amendment’s guarantee of free speech in the realm of political speech where it’s protections should be the strongest. But where conservatives do get upset is when a Court strikes down federal, state or local laws on the basis of a constitutional provision that does not exist. You can search long and hard for a sodomy clause or an abortion clause in the constitution, but you’ll never find one. Yet the Court has, over the last thirty years, incrementally expanded the scope of the Due Process Clause of the Constitution to protect an intangible (and unknowable) right to privacy. The constitution says very little about privacy, at least in the sense that it has been interpreted by the Court. (The clause simply provides that the state shall not deprive a person of life, liberty or property without due process of law. It is, at best, a guarantee of fair procedures by the government and says nothing of the substance of a federal or state law). In either case, upholding a law that should be held unconstitutional under the text of the constitution or striking down a law that should be upheld, the upshot is the same: a Court has exceeded its role by disregarding the text of the Constitution. So whatever the definition of “activism” is, it is more precise to talk about fidelity to the constitution’s text. Gewirz and Golder’s analysis of who is most activist under their definition does little to advance that discussion.

Great Poll Question


CNN/USA Today/Gallup Poll:

Next, we’d like you to think about what would happen if a Supreme Court Justice retired this year and George W. Bush nominated someone to fill that vacancy. How likely do you think it is that Bush would appoint someone to the U.S. Supreme Court who would let their religious beliefs inappropriately influence their legal decisions: very likely, somewhat likely, not too likely, or not at all likely?

The Left vs. American Citizens


Shannen Coffin’s outstanding essay, “The Left’s Last Stand,” reminds us what’s really at stake in Supreme Court nominations:

Every time the people of the country speak through their legislatures on the hot-button issues of the day–abortion, homosexual rights, affirmative action, you name it–the army of lawyers of the Left line up at the courthouse steps to put a stop to the will of the people.
In clamoring for a “moderate,” the Left is seeking yet another rootless Republican appointee who can be snookered into entrenching the Left’s agenda in the guise of constitutional law. To cite just a few examples, the Left wants a Court that will radically redefine (i.e., abolish) marriage, strip “under God” out of the Pledge of Allegiance, create a constitutional right to clone, and look to United Nations bureaucrats to determine what our laws mean. So-called conservative extremists, by contrast, recognize that American citizens ought to retain their rights to decide these and other issues and to govern themselves and their communities within the broad bounds established by the real Constitution.


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