Bench Memos

NRO’s home for judicial news and analysis.

Scorched-Earth Tactics


Charles Schumer, the second-most-junior Democrat member of the Senate Judiciary Committee, has already signaled his intention to launch scorched-earth tactics to thwart or stall the Senate’s confirmation of John Roberts to the Supreme Court. In particular, Schumer can be expected to press the Department of Justice to disclose Roberts’s confidential legal memos from his time in the Office of the Solicitor General.

Senate Democrats made this same demand in connection with President Bush’s nomination of Miguel Estrada to a D.C. Circuit seat. In response to that demand, all seven living former heads of the SG’s Office–Seth Waxman, Walter Dellinger, Drew Days, Ken Starr, Charles Fried, Robert Bork, and Archibald Cox–sent a letter to Senator Leahy (then chairman of the Senate Judiciary Committee) explaining why that demand was improper.

This remarkable bipartisan group of highly respected lawyers “attest[ed] to the vital importance of candor and confidentiality in the Solicitor General’s decisionmaking process” and pointed out that the “unbridled, open exchange of ideas . . . simply cannot take place if attorneys have reason to fear that their private recommendations are not private at all, but vulnerable to public disclosure.” The letter further stated that “[a]ny attempt to intrude into the Office’s highly privileged deliberations would come at the cost of the Solicitor General’s ability to defend vigorously the United States’ litigation interests.”

The Justice Department also sent Chairman Leahy a long letter that explained how the Senate Democrats’ request would violate the separation of powers and run roughshod over established executive-branch privileges. The DOJ letter also pointed out since 1977 the Senate had approved 67 nominees to the U.S. Courts of Appeals who had had previous DOJ experience (including eight who had served in the SG’s office) and that the Democrats’ request was unprecedented.

Curiously, the Senate Democrats were so focused on preventing a Hispanic from being confirmed to the D.C. Circuit that they did not even notice the incongruity of their not making the same illegitimate request with respect to the then-pending nomination of Roberts to the D.C. Circuit.

If Schumer and other Senate Democrats demand any materials from the SG’s office in connection with Roberts’s nomination, that will be a clear sign that there is no principle of law or practice that Democrats will not trample in order to try to stop this nomination. And why stop with the SG’s office? If U.S. senators are going to violate separation-of-powers principles, why not demand that Chief Justice Rehnquist turn over his files from the year that Roberts clerked for him? And if established principles of privilege mean nothing, why not invade the spousal-communication privilege and cross-examine Roberts and his wife as to discussions they’ve had with each other?

Roberts, Harlan, and Roe


With all respect for Gerard Bradley, I strongly disagree with his argument that a justice can’t reverse Roe without imposing his own moral predilections. That view appears to depend on an argument that precedent is entitled to considerable weight. That argument is most dubious in the context of constitutional decisions. Any justice with a proper understanding of the judicial role would recognize that to uphold Roe is to violate his oath of office. As I explained in my recent Senate testimony, it’s time for all Americans, no matter what their policy views on abortion, to recognize that abortion policy should be restored to the people.


Feeble, Laughable PFAW--Part VI


The only case I have yet to address in People for the (Un)American Way’s silly 10-page hit job on John Roberts is Acree v. Republic of Iraq. This case presented the question whether Congress had provided plaintiff American prisoners of war who were tortured by Iraq in the first Gulf War the ability to obtain recovery from Iraq. All three members of the panel–Carter appointee Harry Edwards, Clinton appointee David Tatel, and Roberts–answered that question no. Edwards’s majority opinion determined that plaintiffs had no cause of action, whereas Roberts concluded that the court lacked jurisdiction over the case.

In an uncharacteristic display of fairness, PFAW actually discloses that the issue on which Roberts relied is one that the majority opinion calls “an exceedingly close question.” But PFAW cites the majority’s disagreement with Roberts without presenting any aspect of his meticulous statutory analysis. For starters, for example, Roberts pointed out that he was reading the key statutory phrase “any other provision” to mean “any other provision,” whereas the majority was reading it to mean “provisions that present obstacles to assistance and funding for the new Iraqi Government.”

Congress’s difficult balancing of the foreign-relations interests of the United States and the interest in providing remedies to Americans injured by foreign governments often presents wrenching issues. But PFAW’s effort to blame Roberts for the overall result that all three judges agreed Congress dictated is irresponsible.

Bottom line on PFAW’s report: Ten single-spaced pages of feeble attacks, not a single score.

A Bit of Humor


From the Daily Show:

JON STEWART: What has been the reaction in Washington?

ED HELMS: Liberals are outraged by Bush’s choice. They have been for weeks.

JON STEWART: Ed, they just found out about Roberts last night.

ED HELMS: That’s not the point. The Left wishes the president picked someone they wanted, not someone he wanted. I mean who gave him the authority? It’s abuse of power.

JON STEWART: I think it’s in the Constitution.

ED HELMS: What the Democrats are saying is they wish they had won the last election.

Alert the media!


Senator Obama is undecided! He fears the exceptionally smart, hard-working humble guy who grew up in Indiana might have “no sense.” From the AP:

WASHINGTON (AP) U.S. Sen. Barack Obama said Thursday he hasn’t decided whether he will vote to confirm Supreme Court nominee John Roberts.

Roberts clearly has the legal background and intellect to serve, Obama said. But the Chicago Democrat said he wonders whether Roberts has the wisdom and balance to be a Supreme Court justice.

“In every walk of life, you know people who are really smart but have no sense,” Obama said. “And what you hope for in a justice is somebody who is smart but more importantly also has good sense.”


Who Does John Roberts Remind Me Of?


No, not Greg Kinnear or Dan Quayle. Not talking about his looks. Talking about the kind of justice a Justice Roberts would be. Reading through the long profile in today’s New York Times confirmed what has sounded right to me all along: Roberts sounds a lot like Justice John Harlan. Harlan was a superb lawyer, possibly the best lawyer to sit on the Court in this century. He was very deeply respectful of the Court and the Constitution, non-doctrinaire but still principled and coherent–unlike almost every other justice who has, like Harlan and evidently like Roberts, eschewed grand theories of interpretation.

Harlan of course was with the majority in Griswold. That’s the case which (as George and Tubbs just wrote in the dead-tree NR) started us down the primrose path of “privacy” jurisprudence. Harlan did not live long enough to put an oar into Roe’s water. It really is anyone’s guess what he might have done there.

The weakness in Harlan’s work–and it is the question about Roberts and Roe–is this: When conventional legal reasoning runs out or is indeterminate, where does one turn? This does not happen everyday on the Court. It happens a lot less, as a matter of fact, than liberals contend. But it happens more often than most conservatives allow.

Now, conventional legal reasoning would be enough to do the right thing about abortion–if this were 1973. Even pro-choice lawyers and professors were aghast at the slipshod quality of Blackmun’s opinion. (Maybe that means Harlan would have dissented. Who can say for sure; even sober lawyers such as Lewis Powelll went south in Roe.) The question now is reversing Roe. Here I think we should be very, very cautious about where we think a Justice Roberts would go. (Note well: I do not know Roberts at all and write this solely based upon what I have read
recently about his judicial philosophy.) Dedication to legal craft, the
internal logic of law, the Court’s role in our system, respect for precedent–all the things that Roberts clearly does (and should) value are themselves indeterminate when it comes to this question. Probably, they tilt towards the joint opinion by the three Republican in Casey.

I think that to reverse Roe today a justice has to dip into a realm which, to date, John Roberts suggests is not within his judicial comfort zone:
moral truth. Precedent matters a lot most of the time. But not when we are talking about fundamental matters of justice. To see that abortion is a fundamental injustice requires moral vision, which John Roberts no doubt possesses. But a justice with the requisite moral vision has to have a stable and coherent account, too, of just how moral truth is part of constitutional law. A justice has to have a cogent reply to the standing twentieth-century judicial accusation against what I have just proposed: Judges must never impose their own moral predilections upon the law.

Coffin Talk


Amusing: From the WSJ today:

But Shannen Coffin, a lawyer who worked with Judge Roberts in the Justice Department of the elder Mr. Bush’s administration, cautions that “originalism has many faces.” While he expects that Judge Roberts “would look to the meaning of the text of the Constitution first,” he couldn’t predict how closely the nominee would resemble Justices Scalia or Thomas.
That would have made him the youngest member of the Bush I administration. I checked with SC (just noticed the initials–his destiny?): He was 19 when the Bush 41 administration started and 23 when it was over. (And no, he didn’t work at DOJ until the Bush 43 admin.)

It Takes a Woman to Strip Down to the Real Issue


John Roberts: He’s hot.

“John G. Roberts is the face of today’s governing conservatism.”


Feeble, Laughable PFAW—Part V


PFAW also attacks Judge Roberts’s dissent from the denial of rehearing en banc in Rancho Viejo v. Norton, which presented the question whether the Endangered Species Act could apply to (in Roberts’s witty phrasing) “the taking of a hapless toad that, for reasons of its own, lives its entire life in California.” Roberts pointed out how the panel’s opinion “seem[ed] inconsistent” with the Supreme Court’s Commerce Clause decisions in Lopez and Morrison. He explained that en banc review was appropriate because the panel’s approach conflicted with a Fifth Circuit opinion. He also pointed out that en banc review would “afford the opportunity to consider alternative grounds for sustaining application of the Act that may be more consistent with Supreme Court precedent.”

None of the above is evident from PFAW’s tendentious account. In claiming that Roberts’s dissent “strongly suggested that he thought it would be unconstitutional to apply the Endangered Species Act in this case,” PFAW completely ignores Roberts’s suggestion that alternative grounds might well be available. Rather than present, much less address, Roberts’s arguments, PFAW claims that Roberts’s opinion indicates that he would “severely limit the authority of Congress to protect environmental quality as well as the rights and interests of ordinary Americans.” Apart from the fact that most ordinary Americans, last I checked, are not arroyo toads, PFAW’s real dispute is with the Supreme Court’s decisions in Lopez and Morrison (opinions that O’Connor joined). PFAW cannot fairly fault a circuit judge for seeking to ensure that his circuit follows Supreme Court precedent, and PFAW would surely fault a circuit judge for failing to do so when PFAW favored the applicable precedent.

Feeble, Laughable PFAW—Part IV


I’ve just read the third of the five judicial opinions of Judge Roberts that PFAW attacks, and PFAW’s batting average remains at .000.

In objecting to Judge Roberts’s majority opinion in United States ex rel. Totten v. Bombardier Corp. PFAW professes a concern for “protecting the federal Treasury.” This concern appears to be newfound, as it obviously did not animate PFAW’s immediately preceding discussion of the Taucher case. Nor is there any evidence that this has previously been a concern of PFAW’s. A cynic might be pardoned for thinking PFAW’s concern insincere and contrived.

In any event, PFAW’s reading of this case is highly distorted. Judge Roberts, joined by Clinton appointee Judith Rogers, ruled that a provision of the False Claims Act that provides that imposes liability on any person who submits a false claim “to an officer or employee of the United States Government” means, lo and behold, that liability attaches only if a false claim is submitted “to an officer or employee of the United States Government,” not if it is submitted to Amtrak. Applying Supreme Court precedent, Roberts “adhere[d] to the plain language of the statute, rather than invoke the legislative history to embrace a reading at odds with the statute.”

Judge Garland, in dissent, did not dispute the majority’s reading of this provision but instead would have relied on a different provision of the False Claims Act (subsection (a)(2)) to reach a different result. Judge Roberts pointed out that in the six-year history of the case none of the parties had ever argued that subsection (a)(2) was applicable and that arguments not made on appeal are ordinarily deemed waived. Judge Roberts (again, joined in the entirety of his opinion by Judge Rogers) further interpreted subsection (a)(2), which attaches liability where a person makes a false statement to get a false claim “paid or approved by the Government,” to require, believe it or not, that the claim have been paid or approved by the Government.

I Agree with the Guardian! (Well, Kinda, Sorta)


I’d like to know where John Roberts falls on this, too! From the Guardian’s top editorial today:

Yet the US, in this as in other respects, remains neuralgic about drawing on international experience. Justice Scalia, in particular, seeks to cut the US off entirely from the 21st-century global legal conversation. Justice O’Connor, on more than one occasion, argued the case for engagement. One of the acid tests for Judge Roberts will be whether he chooses to help Americans join that conversation or to block their ears to what the rest of the world is saying.

Ramesh vs. Ann Coulter


Here. He’s got a Corner Court Watch going on, so be sure you’re reading both Bench Memos and Da Corner regularly.

Phew! Okay, I’m Back in My Comfort Zone with Roberts!


From: Ellie Smeal
Sent: Wednesday, July 20, 2005 10:34 PM
To: Kathryn Lopez
Subject: Urgent Bulletin: Bush Nominates Far-Right Judge to Supreme Court

Dear Feminist Activists,

President Bush has nominated an ultra-conservative judge to take Sandra Day O’Connor’s seat on the Supreme Court.

The fight to save the Supreme Court must begin now. The Feminist Majority is opposing John Roberts for the Supreme Court.

Roberts, a judge on the DC Circuit Court of Appeals, has a record that indicates he will be a solid vote against women’s rights and Roe v. Wade. As Deputy Solicitor General, Roberts argued against Roe v. Wade, and also argued on behalf of Operation Rescue, an extreme anti-abortion group, in Bray v. Alexandria. Those of us who defend clinics know that the result of the pro-choice loss in Bray v. Alexandria was increased violence at clinics. In private practice, Roberts argued against affirmative action.

The Feminist Majority will urge every Senator who supports women’s rights to thoroughly question Roberts on his views on fundamental women’s rights, civil rights, and reproductive rights issues. If Roberts is to be confirmed by Senators, he must say where he stands on Roe, the right to privacy, women’s rights, and civil rights. The burden is on him.

The opposition forces behind President Bush have already raised millions of dollars to support Bush’s nominee for the Supreme Court. Just one such right-wing advocacy organization, Progress for America, has raised $18 million already to fight for President Bush’s Supreme Court nominees. Another such organization, the Judicial Confirmation Network, has raised $3 million for its media campaign to fight any attempt to filibuster a Supreme Court nominee. Progress for America has already launched a website in support of Roberts.

Let there be no mistake about it. The case most likely to be reversed or pivotal in the coming Supreme Court nomination fight is Roe v. Wade. But even some of our progressive friends tend to marginalize the abortion issue. We must rally the millions of women and men who support reproductive rights if Roe is to be saved.

The Feminist Majority must be strong enough to ensure that the rights of women are a central part of the Supreme Court debate. Please make a special emergency contribution to the Feminist Majority’s Save Roe Campaign today. We need money for Internet banner ads, grassroots organizing kits, field organizers, and a massive PR operation.

The Feminist Majority will continue to examine Roberts’ record, and it will demand that Senators not confirm Roberts unless he makes clear that he will not reverse Roe and civil rights for women, minorities, and the disabled.

Women, who have the most to lose, must be the strongest voice in the debate over the Supreme Court. This time, for once, we will not be ignored.

Please help us to mount a campaign worthy of the rights of women.

Together, we can make a difference.

For Women’s Lives,
Eleanor Smeal
Feminist Majority

It’s Still Okay to Like John Roberts, Right? Despite?


”[John Roberts] is not an ideologue or a right-wing fundamentalist kind of guy, which we all feared Bush would nominate,” said James McNaughton, a retired foreign service officer and a neighbor in Roberts’s suburban Washington neighborhood. ”He’s a very normal American dad — maybe that’s getting a little scarcer than it used to be.”
Remember this normal America dadwas considered a “right-wing fundamentalist kinda of guy.

You Don’t Say


John Roberts and Joseph Story


Over in The Corner, Ramesh Ponnuru has quoted a sentence he considers mildly alarming from Judge Roberts’ 2003 confirmation testimony: “I don’t necessarily think that it’s the best approach to have an all-encompassing philosophy” of judging. I actually don’t find this particularly alarming, because I take it to be a knock against “theory” or “theorizing.” There are two ways to eschew “theories of judging.” One is the way chosen by Sandra Day O’Connor, sometimes flatteringly called pragmatism, otherwise known as incoherence. The other way is to devote oneself utterly to discerning what theory the Constitution has of itself. As Joseph Story wisely wrote in his Commentaries in 1833, while simultaneously serving on the Supreme Court and teaching at Roberts’ alma mater:

“Constitutions are not designed for metaphysical or logical subtleties, for niceties of expression, for critical propriety, for elaborate shades of meaning, or for the exercise of philosophical acuteness, or juridical research. The are instruments of a practical nature . . . Men of ingenious and subtle minds, who seek for symmetry and harmony in language, having found in the constitution a word used in some sense, which falls in with their favorite theory of interpreting it, have made that the standard, by which to measure its use in every other part of the instrument. They have thus stretched it, as it were, on the bed of Procrustes, lopping off its meaning, when it seemed too large for their purposes, and extending it, when it seemed too short.”

If Roberts approaches the Constitution in the “anti-theoretical” spirit of Story–which was decidedly not that of O’Connor–that will be good enough for me.



“I don’t think the American people are going to put up with any more crap from the Judiciary Committee.”

–Senator Hatch, last night, on Dem oppposition to Judge Roberts

Greenhouse Gas Cloud


I see Linda Greenhouse’s front-page NYT “analysis” piece from yesterday a little differently from the way Ramesh Ponnuru and Stanley Kurtz see it. Yes, it’s an unconscionably opinionated piece for the news pages, even under the rubric of “analysis,” as Ramesh notes. And yes, it may have a “this is the best we can hope for from Bush” air about it, as Stanley says. But the real import of the article is that it is the opening salvo in a campaign of seduction. Perhaps Linda Greenhouse has begun to believe her own press–more precisely, what is said about her on the right–and thinks that all she has to do is flirt with John Roberts about all the nice things she might one day say about him in the New York Times, and maybe he will “grow” in office the way some other justices have done. This is the fabled “Greenhouse effect,” and this is Linda’ opening bid to work its magic once again:

“Don’t be like those icky sticks-in-the-mud, those angry little men Scalia and Thomas, Johnny. Be a real man, a big man, a man not afraid to be a little like a woman, a little like Sandra Day O’Connor. If you truly love the Court as an institution, John, as you suggested you did last night, prove it, big fella. If you love the Court, you can change for it, move where it’s moving, not fight the Zeitgeist. You are getting very sleepy . . .”

John Roberts strikes me as a wide-awake fellow with his feet planted on terra firma. I believe he can hold his breath whenever the Greenhouse Gas Cloud comes his way.

Feeble, Laughable PFAW—Part III


Another of the grand total of five judicial opinions of Judge Roberts that PFAW attacks is his ruling in Taucher v. Brown-Hruska that denied an award of attorney’s fees to plaintiffs in a case brought against the Commodity Futures Trading Commission. You’ll have to try really hard to stay awake as I describe the severe threat to American liberties that PFAW pretends to see in this case.

In order to combat fraudulent practices affecting the commodity futures market, Congress enacted the Commodity Exchange Act. That Act makes it unlawful for any commodity trading adviser to use any means of interstate commerce in connection with its business unless it first registers under the Act. Certain publishers who were commodity trading advisers challenged the registration requirement as violative of the First Amendment. Reasoning from a 1945 concurring opinion by Justice Jackson and a 1985 concurring opinion by Justice White, the district court determined that the registration requirement was a regulation of the publishers’ speech rather than a regulation of professional practice and that it was an unconstitutional prior restraint.

After the CFTC abandoned its appeal, the plaintiff publishers sought to recover attorney’s fees under a statute that awards attorney’s fees to a party prevailing against the government unless the government’s losing legal position is “substantially justified.” A magistrate determined that it was “so self-evident and obvious” that the registration requirement was not regulation of professional practice that the CFTC’s position was not “substantially justified.” It therefore awarded attorney’s fees.

Judge Roberts’s majority opinion rejected the magistrate’s determination that the CFTC’s position was not “substantially justified.” Judge Roberts noted, among other things, that the district court’s merits ruling had relied on two concurring opinions (as opposed to established Supreme Court precedent) and that the discussions in those very opinions belied the magistrate’s assertion that the issue was “self-evident and obvious.” Judge Edwards, in dissent, believed that the abuse-of-discretion standard applicable to review of the fee award required that the majority defer to the magistrate’s determination.

From this highly factbound dispute over the proper application of the abuse-of-discretion standard, PFAW would evidently have us believe that Judge Roberts’s ruling somehow undermines a fee award statute that “is important in opening access to the courts to persons who might otherwise not be able to challenge unlawful or unconstitutional government action.” Americans may sleep safely tonight knowing that PFAW’s contention is hogwash.


Subscribe to National Review