Bench Memos

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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.

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



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