Bench Memos

NRO’s home for judicial news and analysis.

RE: Sunstein


The Left just loves to create new words to project their views on conservatives. “Frankfurterians” and “Thomisticians”? How absurd. In my view, Frankfurter’s judicial philosophy doesn’t lend itself to a single-word label. Thomas is, on the other hand, an originalist, or as close as one is likely to ever be one. As for the Court striking down this legislation or that legislation, Sunstein unwittingly (presumably) appears to be an “oligarchian.” Since judicial review is not a constitutional power but one that the Court has implied from its structure (starting with Marshall), justices should, first and foremost, be careful in determining which cases to even consider. This much Marshall himself made clear. When adjudicating, the Court should show great restraint by only addressing that which is discernable from the Constitution’s text to avoid making policy (which the elected branches are fully capable of doing) and undermining the Constitution’s structure (that is, leaving it to the elected branches and the people to fill in the gaps as much as possible). That’s not to say the Court should not opine against legislation it considers in violation of the Constitution, having already embraced judicial review. And I know this drives liberals and libertarians nuts, but Congress still retains the constitutional power to limit the judiciary’s jurisidiction and make-up, among other things. Congress’s reluctance to exercise this and other legitimate powers in this regard is political not constitutional. Judicial supremacy is not mandated by either the Constitution or the concept (or exercise) of judicial review.

As an aside, I’ve always felt that if the Court had not concocted constitutional arguments for justifying virtually all forms of economic regulation (including environmental laws) over the last 70 years, the amendment option would have been more aggressively and perhaps successfully pursued by Congress. After all, it’s not as if the framers left future generations with armed revolution as the only recourse to expand (or limit) the federal government. The amendment option wasn’t intended to be essentially the dead-letter it is today. Besides, if big government is so wildly popular with the public, as Sunstein and others insist, the super-majority requirements for amending the Constitution would have been achievable. Same with abortion and the rest of the Left’s economic and cultural agenda. But, alas, these days they can’t seem to win national elections with their agenda. Hence, Sunstein the judicial “oligarchian” — which, from this day forward, I shall refer to as “Sunsteinian.”

“If he appoints an extremist, he will have a big fight on his hands.”


That’s the word from NOW’s Kim Gandy. Of course, it doesn’t take much for her and da sistas to find an “extremist.”


O’Connor and the Left


I appeared Friday on Ron Reagan’s MSNBC show opposite Eliot Mincberg from People for the American Way. In seeking to position himself as the picture of moderation, Eliot demonstrated just how far the far left have fallen in the battle over the Courts. He, like the other spokesmen for liberal interest groups over the last 2 days, have been lauding Justice O’Connor as the model for what a good Supreme Court Justice should be, arguing that if the Court were full of Justice O’Connors, all would be right in the world. But Justice O’Connor was hardly the water carrier for the liberals that they would have the world think. Yes, she was a solid vote for abortion rights, was a swing vote on affirmative action in education, and had been a disappointment to conservatives on various social issues of late, but at the same time, she was with the “conservative” majority in crucial decisions limiting federal power to legislate (Morrison and Lopez), upholding school vouchers (Zelman), limiting the ability to sue states in federal court (Seminole Tribe), preserving the Boy Scouts’ ability to determine its own membership and troop masters (Dale), outlawing race-based preferences in government contracts (Adarand), and, at least in some cases, protecting religious speech from government discrimination (Rosenberger). While it is fair to say that Justice O’Connor often did not decide cases on the basis of a clear, discernible principle and that she often drove conservatives nuts, she hardly deserves the place in the liberal pantheon of Bill Brennan, Thurgood Marshall and Ruth Bader Ginsburg. With NARAL and People for the American Way are holding Justice O’Connor out as the kind of jurist that they really want, it would seem that either a) this battle is really all about abortion and nothing else for the left (even though, as Ed Whelan has properly observed, Roe would not be affected by this nomination, or b) the left must be pulling their hair out behind closed doors because they have so massively lost their place at the table of American politics. If the best they think they can do is to preserve the status quo on the many issues where O’Connor joined Scalia, Rehnquist, Thomas and (at times) Kennedy, then it would seem to me that the far left has really slipped as an effective political movement.

From a Feminist Majority E-mail Saturday


Subject Line: ” O’Connor Resigns! Abortion Rights Emergency!”

This is it! The worst has happened with the resignation of Sandra Day O’Connor. Let there be no mistake about it: Sandra Day O’Connor was the 5th vote that was saving Roe v. Wade. Abortion rights and women’s rights are on the line.

On Consultation



Sunstein on O’Connor


Cass Sunstein has written a brief piece on Justice O’Connor and conservatives. He deserves credit for somehow managing not to use the phrase “judicial minimalism”—if I were him, I’d have been unable to resist—but the concept is lurking in there. I think judicial minimalism is arrogance cloaked as humility, to coin a phrase. But since it’s not his focus in the article, it won’t be mine here either.

Sunstein’s aim is to divide conservatives into two camps: “Frankfurterians [who] despise Roe v. Wade, but . . . are also reluctant to use the Constitution to strike down affirmative action programs, environmental regulation, or campaign finance reform laws,” and “Thomistic conservatives [who] believe that the Supreme Court should enforce the ‘original understanding’ of the Constitution, and that radical steps are necessary to restore the Lost Constitution.” The Thomists—I think he’s referring to Clarence Thomas, not Aquinas—”are perfectly willing to strike down affirmative action programs, gun control legislation, environmental regulations, restrictions on commercial advertising, campaign finance laws, and much more.” Guess which he prefers.

If I had to choose between these two camps, I suppose I’d be a Frankfurterian, since I don’t want the courts to strike down environmental regulation, campaign-finance laws, gun regulations, restrictions on commercial advertising, etc. But I don’t think it’s necessary to choose between the camps: I think my views are perfectly compatible with originalism.

Anyway, his typology breaks down as soon as he attempts to apply it to O’Connor. She is allegedly a Frankfurterian who is now reviled by conservatives because they have become Thomists. But Sunstein himself notes that “she voted to strike down lots of affirmative action programs.” She obviously did not “despise Roe v. Wade.” She voted with Thomas on the eminent-domain and medical-marijuana cases. Nor does Sunstein make the case for O’Connor’s alleged commitment to “stability in the law.” Wouldn’t that commitment have dictated a reversal of her vote in Lawrence? And a more predictably rule-bound jurisprudence generally?

A Salute


Why Delay a Nomination?


Does anyone have any coherent explanation for the White House’s apparent strategy of delaying a nomination? I’m stymied by that decision, which I believe is quite detrimental to the President and his nominee. Despite checking with a number of well-plugged-in people, I can’t find anyone who can articulate a compelling rationale.

The advantages of a speedy nomination are obvious: it allows the President to make his own news and seize the initiative; it prevents the storm of leaks, trial balloons, demands, lines-in-the-sand, and interest group pressure from achieving critical mass; and it enables earlier hearings. The protracted pre-nomination periods during the two Clinton picks are generally thought to have made the President look indecisive, political, and awful.

The White House staff has been fully ready to advise the President on an appointment to replace Justice O’Connor since the spring of 2001, so it can’t be that the White House was unprepared for this. (That would be unconscionable if true.). While some period of time is needed to ensure careful deliberation, thorough consideration of the various factors affecting the choice, and interviews of a couple finalists by the President, 2-3 days should be more than sufficient. I would have expected a nomination on Monday, July 4th, or the morning of Tuesday, July 5th.

Instead, the White House has formally promised that there will be no nomination prior to July 8th, and they appear to be conditioning the press to expect an announcement even later than that — either the week of July 11th or possibly even after Labor Day.

I can only imagine that some of the old hands are drawing the wrong lessons (or over-learning the right ones) from the Bork nomination, in which the August recess was used to good advantage by opponents of the nomination. But Bork was not defeated for that reason; there were many others that played a much greater role. And the interest groups and surrogates on the right are ready this time in a way that they were not in 1987. Finally, and perhaps most importantly, the President’s Party controls the Senate by a comfortable margin. In all phases of this battle, speed would seem to favor the Administration and the nominee. Delay favors their opponents.

So why are they pursuing this strategy? What am I missing?

Possible Nominee John Cornyn


The Washington Post tries to use NRO against him!

Uh, This Sounds Like Consultation


More from the Washington Times:

Mr. McClellan said Mr. Bush spoke yesterday with Sen. Patrick J. Leahy of Vermont, ranking Democrat on the Senate Judiciary Committee, and committee Chairman Arlen Specter, Pennsylvania Republican. The president spoke this week about the Supreme Court with Senate Minority Leader Harry Reid of Nevada and yesterday tried unsuccessfully to reach him, the spokesman said.

He added optimistically: “I just can’t imagine that Democrats are going to want to engage in controversial tactics when it comes to a nominee for the Supreme Court.”

For the Sake of My Sanity, I Have Believe this Isn’t True


From the Washington Times:

The White House was caught off guard yesterday when Supreme Court Justice Sandra Day O’Connor announced her retirement, forcing top administration officials, who had been readying for the departure of the court’s conservative chief justice, to reconsider its options.

Bush administration officials already have interviewed some top candidates for the nation’s highest court, but the group of contenders were front-runners to replace the ailing, 80-year-old Chief Justice William H. Rehnquist, not to fill the seat of the court’s first female justice, who is considered moderate…

Consultation vs. Pre-Nomination Veto


Once we set aside the frivolous argument that the Constitution requires or contemplates that the President engage in pre-nomination consultation with senators, two additional points bear emphasis:

1. The President over the past four years has engaged in an ongoing process of consultation with senators, including Democrats. That process continues. The President and other Administration officials have made clear the qualities that the President is seeking in Supreme Court justice and other federal judges. Senators are free to communicate their own views on those qualities and on specific candidates and have done so. There is no reason to doubt that the President is giving those views due consideration.

2. What Senate Democrats really seek isn’t consultation, but the power to exercise a pre-nomination veto. They want the President to run by them the specific candidates that he is seriously considering so that they can decide whom, if anyone, to pre-clear. As Andy McCarthy has explained, the Framers clearly opposed this sort of role for senators and recognized that it would tend to produce bad nominees.

It is true that President Clinton pre-cleared his two Supreme Court nominees with Senator Hatch. But, as I have explained, the Democrats’ implacable ideological hostility to the sound jurisprudential approach that President Bush favors makes that example entirely inapt:

Apart from the fact that one should tremble to cite Clinton as a model of presidential conduct to emulate on anything, the Clinton-Hatch example provides a striking contrast to today’s situation.

Hatch (for whom I then worked) openly invoked the principle that the president was entitled to considerable deference on his Supreme Court nominees. For better or worse, his objection in practice to certain candidates was essentially personal — aimed at individuals whom Republicans disliked or who would create undue political difficulties for them — not jurisprudential. Clinton knew that he could work with Hatch and still nominate justices who were, from Clinton’s result-oriented perspective, indistinguishable from the candidates Hatch raised concerns about. The same is not possible for President Bush with Senate Democrats.

Bottom line: Lots of consultation has occurred and is ongoing. Senate Democrats have no right to a pre-nomination veto.

Interesting Rumor


Of the SCOTUS rumors, the most interesting is that Senator Frist suggested three potential nominees to Senator Reid — including Fifth Circuit judge Emilio Garza — and Reid rejected all three.

Re: Specter: Gotta Get a Girl Soon


I hope that President Bush focuses on choosing the best candidate, not on satisfying some diversity checklist. That said, he need look no further than Texas to find two outstanding female judges on the Fifth Circuit – Edith Jones and Priscilla Owen – who would promise to be excellent justices.

In one of the few big mistakes of his presidency, the first President Bush selected David Souter over runner-up Jones in 1990. His son’s nomination of Jones would go some way to repairing that error.

Senate Democrats might think that their four-year delay in confirming Owen prevented her from getting the experience needed to be a serious Supreme Court candidate. But all that time Owen was serving as a Texas supreme court justice, and she has ample experience.

National Right to Life Committee on O’Connor Resignation



WASHINGTON — On the occasion of Justice O’Connor’s retirement announcement today, the following statement was issued by the National Right to Life Committee (NRLC).

“Millions of Americans will be watching to see whether the Senate Democratic leadership bows to the demands of certain pressure groups that a nominee must pledge to rule for the pro-abortion side in future cases,” stated NRLC political director Carol Tobias. “Already, some Democratic senators, such as Ted Kennedy, are clearly demanding a litmus test.”

Many commentators in the news media have made observations about the possible impact of an appointment on legal issues pertaining to abortion. Some of these commentaries are well informed, but others contain misinformation and distortions. For example, one oft-heard myth is that the current Supreme Court is divided 5-4 on Roe v. Wade. This is demonstrably wrong. In reality, six of the current justices, including Justice O’Connor, have voted to reaffirm Roe v. Wade’s holding that abortion must be allowed, for any reason, up until “viability” (and for “health” reasons, which has been broadly defined, even after viability). Thus, even if the President were to appoint a successor justice who some day decides that Roe v. Wade was an unconstitutional ruling, there would still be a pro-Roe majority on the Supreme Court.

The misconception that the Supreme Court is divided 5-4 on Roe was refuted by the Annenberg’s Center’s here.

“The Supreme Court is clearly divided 5-4 on one critical abortion issue — partial-birth abortion,” Tobias said.

In the 2000 case of Stenberg v. Carhart, O’Connor voted with the five-justice majority that struck down state laws that banned the brutal partial-birth abortion method, in which a living premature infant is mostly delivered alive before being killed by puncturing her skull and removing her brain. (Justice Kennedy, a vote in favor of Roe’s doctrine of legal abortion for any reason, nevertheless felt it was constitutionally permissible for a state to ban the particular METHOD of partial-birth abortion.) In 2003, President Bush signed into law a federal ban on partial-birth abortion (except to save the life of the mother), but its enforcement has been blocked by the lower federal courts in litigation that is headed back up to the Supreme Court. The President’s nominee may very well cast the deciding vote to determine whether the brutal partial-birth abortion method will remain legal.

Much of the public has also been misled into believing that “overturning Roe v. Wade” means “banning all abortions.” In reality, the effect of even a complete overturning of Roe would be to place questions relating to protection of unborn children and abortion into the hands of elected lawmakers and the American people, rather than a small group of unelected judges. As the leading pro-abortion litigation group expressed it last year: “A Supreme Court decision overturning Roe would not by itself make abortion illegal in the United States. Instead, a reversal of Roe would remove federal constitutional protection for a woman’s right to choose and give the states the power to set abortion policy.” (“What if Roe Fell?,” Center for Reproductive Rights, September 2004)

For information on other related issues, including refutation of the assertion that Roe applies in some special way “in the first trimester,” see

National Right to Life is the nation’s largest pro-life organization, with 50 state affiliates and approximately 3,000 local affiliates nationwide. NRLC works through legislation and education to protect those threatened by abortion, infanticide, euthanasia, and assisted suicide.

Make It Like Ginsburg


Specter: Gotta Get a Girl Soon [Sigh]


More from Specter:

QUESTION: Do you think it’s important that the president consider nominating a woman to replace Justice O’Connor?

SPECTER: I think that it is very important for there to be
gender balance on the court. We have Justice Ruth Bader Ginsburg
there now. But I would not want to say that seats are reserved for
any special religious group or ethnic group or women as opposed to

But I think two is a minimal number, and if this nominee is not a woman, I would like to see an early sensible (ph) nominee to maintain at least two and really moving beyond that to more women on the court. I think there is a dimension there which is very, very important for the administration of justice.

More on Consultation


From an Arlen Specter presser today:

QUESTION: If the president does announce a nominee today, would he have done so without consulting the Senate? Would that be a disappointment to you?

SPECTER: No, it would not be a disappointment to me because it’s the president’s call. And I thought about this long and hard, about submitting names to the president, and it seemed to me the wiser course at this particular time was not to do so. I’m well aware of the advice function, as well as the advice and consent function. But I wasn’t asked. Don’t ask, don’t tell. And there’s also greater latitude by senators who have not given advice. And that’s something which is in my mind as well. There are several, though. You could give advice and then not consent even after you’ve given advice. But it wouldn’t be quite so easy. So the independence and separation of power, I think, in this particular situation, after having thought about it long and hard, is best preserved by not giving advice and performing the consent function.

Fourth of July Reflections


Some questions to ponder this Fourth of July weekend and throughout the upcoming Supreme Court confirmation battle:

Do we Americans still believe the “self-evident” truth that “all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness”? Or do we think that it is no longer proper, as a political community, even to acknowledge God and that the Supreme Court bestows and defines our rights?

Do we still believe, as Jefferson and his fellow Founders did, that “virtue is the foundation of happiness”? Or do we think that the “Pursuit of Happiness” is a synonym for selfish hedonism?

Do we still believe that “Governments . . . derive[e] their just Powers from the Consent of the Governed”? Or do we acquiesce in the Supreme Court’s lawless power grabs that deprive us of our rightful power to establish the rules that govern our communities?

Do we still believe that “subject[ing] us to a Jurisdiction foreign to our Constitution” is an abuse that demands vigorous protest? Or are we content to let the Supreme Court look to foreign law to determine the meaning of our Constitution?

Do we still believe, as Chief Justice Marshall declared in Marbury v. Madison, that the Constitution is “committed to writing” so that its “limits may not be mistaken or forgotten” and that to disregard its limits is to “reduce[] to nothing what we have deemed the greatest improvement on political institutions—a written constitution”? Or do we think that the Supreme Court may invent rights that are not in the Constitution and ignore those that are?

Do we still recognize that the Constitution leaves to us as citizens the responsibility for addressing and deciding the grand questions of our age? Or do we surrender to the Supreme Court’s absurd claim that it is its role to determine which interests are somehow part of a New Age “right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”?

Gonzales Campaign



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