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Confusion on the Left


E.J. Dionne’s op-ed column in today’s Washington Post provides a hilarious example of how the Left uses crude political labels to obscure the underlying power issues that are really at stake in the battle over the Supreme Court. Dionne asks:

Should a temporary majority of 50.7 percent have control over the entire United States government? Should 49.3 percent of Americans have no influence over the nation’s trajectory for the next generation?
The basic question Dionne ought to be asking, of course, is of a very different nature: Should five justices be free to invent “rights” that have no legitimate basis in the text or structure of the Constitution and to deprive 300 million Americans of their constitutional power to set policy on those invented rights?

The Left seeks to entrench its agenda in the guise of the “living Constitution.” It wants justices to make up rights that aren’t in the real Constitution and to ignore rights that are. So-called “conservative extremists,” by contrast, recognize that the Constitution leaves the vast bulk of important issues to be decided by American citizens through their representatives. And, although the Left often asserts that “conservative” justices are as “activist” as “liberals,” it cannot even allege instances of judicial imposition of substantively conservative results that are remotely comparable to the Court’s broad-ranging–and patently illegitimate–imposition of the Left’s agenda over the last several decades.

In short, anyone concerned (as Dionne claims to be) about the ability of Americans to have “influence over the nation’s trajectory for the next generation” ought to be an ardent advocate of Supreme Court nominees like Scalia and Thomas who respect the proper realm of the democratic processes.

Re: Kennedy for Chief Justice


On Kathryn’s post: I would much prefer Ruth Bader Ginsburg to Anthony Kennedy as Chief Justice. Seriously.

I don’t think short-term political calculations should lead the president to nominate a Chief Justice whose approach to judicial decisionmaking is far afield from what the president has endorsed. So I see Scalia and Thomas as the only acceptable candidates for elevation in the event of a Rehnquist resignation.

But if the president were to consider the political calculations that Kathryn’s correspondent raises, Ginsburg would be a better choice than Kennedy. First, I fear that making Kennedy Chief would cause him to move further left to try to establish a “Kennedy legacy”. Second, nominating Ginsburg rather than Kennedy would make any overall package appear more moderate. Third, nominating Ginsburg would reduce any undue diversity-driven incentive to nominate a woman to replace O’Connor. (There are, of course, plenty of women candidates who would be excellent selections on the merits.)

My guess, though, is that the Chief would be appointed from outside the Court.


Defense of Gonzales on Recusal


My correspondent whose views on Gonzales’s recusal obligations I disputed in my NRO essay today offers these additional comments:

Your response certainly narrows the issue in dispute. I think we agree that Attorney General Gonzales is basically a conservative in good standing, with four years of very active and able duty to his credit. That means he doesn’t deserve the “borking” treatment he’s receiving from some on the Right about his fidelity to Constitutional first principles. I also think we agree that it would be a good idea for White House vetters to inquire about the extent of Gonzales’ recusal obligations to determine how they might impact his ability to “do the job” of a Supreme Court Justice. I doubt that they’ll conclude that he can’t do the job. You and Andrew McCarthy are convinced he can’t do the job, at least with respect to many important matters related to the War on Terror and the ongoing Kulturkampf.

Let me try once more to allay your fears. First, you are both still embracing too broad a view of 28 USC 455. You’re right that the statute encompasses two different sets of recusal obligations (in subsections a and b), but they are related, with subsection (a) being more or less a catch-all to cover issues not specifically outlined in subsection (b). And both subsections must be viewed in light of the changes in the law in 1974, which didn’t “toughen” the law as much as you seem to think.

Take, for instance, the provision you referred to requiring recusal where a Justice “has been of counsel … or is so related to or connected with any party or his attorney as to render it improper, in his opinion, for him” to take part in a proceeding. We both agree that the new provision replaces the subjective “in his opinion” standard with an objective standard. That’s tougher. But the new provision also deletes the previous “of counsel” language, which means that a Justice no longer has to recuse in a case simply because his name may have been on a brief as a formality. That’s a liberalization of the law designed to allow former government officials to participate in more rather than fewer matters.

In addition, the post-1974 law doesn’t impose a blanket prohibition on Justices sitting on cases involving laws they may have supported or even drafted. The law on this point is spelled out in a scholarly 2001 analysis by Judge Danny Boggs in a Sixth Circuit case called Buell v. Mitchell, which I commend to you for further review. In that opinion, Judge Boggs notes that former Supreme Court Justices Vinson, Burton and Black “routinely sat on cases involving legislation passed while they were members of Congress.” And while it is correct that some of the current recusal language may not have been in effect during the tenure of past Justices, non-legal ethical canons in effect at the time imposed obligations that are largely unchanged today.

I could also try to allay your fears with respect to some of the specific cases you’ve mentioned, such as Gonzales v. Oregon, where the Attorney General is merely a nominal party. But the truth is none of us know precisely what role Gonzales has played in these matters, or whether his vote would most likely be critical to the outcome of an appeal. We simply ought to trust the President to sort the issue out.

We also ought to take the long view. A Supreme Court appointment is for life, and the opportunity for fundamental conservative gains on the Court is still at least two or more appointees away. If that opportunity becomes a reality, Gonzales is likely to be a leader amongst his peers.

The long view is also relevant to the issue of appointing a conservative Hispanic to the Court. Like the appointment of Justice Thomas, the appointment of an able, accomplished Hispanic to a position of national prominence, in which he will become a visible exponent, through decisions and speeches, of a conservative jurisprudence exposes the falsehood that there is only “one way” for an educated minority to think about the legal system and politics generally. This is not a dispositive issue, of course, and I am not suggesting that it ought to take priority over other considerations. But it is something that our President and fellow conservatives ought to bear in mind.

Conrad Would Support Gonzales



Sen. Kent Conrad, D-N.D., said he was contacted Friday by White House Counsel Harriet Miers, who sought his opinion on a replacement for O’Connor.

Conrad said he told Miers he would support Attorney General Alberto Gonzales for the post, if he is nominated. He also said he suggested the president nominate Kermit Bye, a North Dakota native who sits on the 8th U.S. Circuit Court of Appeals

RE: Wit


Jon, at 5:20 Friday night, it’s not that funny.


Rehnquist’s Wit


When asked by a TV reporter earlier today whether he was about to retire, Chief Justice Rehnquist quipped, “That’s for me to know and you to find out.”

Slandering the Chief


Dana Mulhauser, a student at Harvard Law School, has an essay–“Person of Rank”–over at The New Republic Online arguing that the reason Chief Justice Rehnquist has not retired is because, in a nutshell, he’s full of himself, wants to be in charge, enjoys the limelight, is a self-promoter, etc. Look, it would be really cool to be published as a law student in the New Republic, but Mulhauser is–as anyone who knows the Chief knows — entirely wrong. He cites as evidence for his claim that the Chief has a “flair for the . . . self-congratulatory” the utterly unremarkable fact that he talked about his book on Charlie Rose’s show. Did Mulhauser see the show? I’m a big fan of the Chief, but “flair” was not the word that came to mind. He writes: “[Rehnquist] is reported to genuinely relish being the man in charge–peppering clerks with trivia questions and presiding jauntily over the Supreme Court Christmas party.” This is silly. What does banter about trivia with clerks–banter I recall from my law-clerk days being very low-key and fun–have to do with “being the man in charge”? And, for those of us who have actually been to the Court’s Christmas party, there’s nothing “jaunty”–just un-self-consciously enthusiastic and endearingly goofy–about the Chief’s carol-conducting. Mulhauser concludes: “Rehnquist knows his place in the world, and he revels in it. . . . This is not a man with any desire to rush from the limelight. This is a man who is Number One–and wants to make sure you know it.” This is nonsense. Period.



Kennedy for Chief Justice


An e-mail so weird you just have to wonder:

I propose that Bush should consider nominating Anthony Kennedy to be Chief Justice of the Supreme Court.

The Democrats are clamoring for nominations in the mold of O’Connor.
Kennedy, while having a different focus than O’Connor, is just about exactly as conservative or liberal as O’Connor. And, until a third vacancy occurs, Kennedy will be the swing vote on just about every issue, so Kennedy will be the de facto chief of the Supreme Court anyway.

Essentially, it buys Bush a perception of centrism at almost zero cost. The public perception will be of a perfectly balanced court being created by
Bush: four liberals, four conservatives, and the Chief Justice as the ideological centrist. And yet, Bush will have steered the court as hard to the right as is presently possible.

4:55 Rehnquist Resignation


That’s what Bob Novak said on CNN earlier. But the Supreme Court Nomination blog says no.

The G-Man


Besides all the recusal points Ed, Andy, and Ramesh have made, I keep coming back to another basic (I think) and practical point. He’s AG, he was hard to get in as AG, why move him now and go through another confirmation for him and another transition and hearing, etc. for DOJ? As someone who would know just said to me: “having another Attorney General change and confirmation, etc. would be very disruptive. The people in there now are mostly Gonzales people. It is a good cohesive working group. If they were to change him, it would have a down the chain impact of changes too that would not be good to go through again in the middle of the war on terror. There is a good group there right now that needs to stay in place to protect us.” I just don’t see the president making the disruption.

And as I’ve said, I delusionally trust that it’s just the genius that is Rove that someone in the administration started all this in the first place.

Re: Gonzales, Recusal, and Partial-Birth Abortion


Earlier today, in the case of Carhart v. Gonzales, the U.S. Court of Appeals for the Eighth Circuit ruled that the federal Partial-Birth Abortion Act of 2003 violates the Supreme Court’s 2000 ruling in Stenberg v. Carhart. The Eighth Circuit is the first federal court of appeals to rule on the federal act.

The liberal media generally sees fit not to inform its audience what “partial-birth abortion” is. Instead, as in a recent Washington Post article, it will merely refer to a “procedure called ‘partial birth’ abortion by critics.” So pardon me for a second while I describe in simple lay terms what partial-birth abortion is: It’s a method of late-term abortion in which the abortionist typically dilates the mother’s cervix, extracts the baby’s body by the feet until all but the head has emerged, stabs a pair of scissors into the head, sucks out the baby’s brains, collapses the skull, and delivers the dead baby. According to estimates cited by the Court in Stenberg, up to 5000 partial-birth abortions are done every year in this much-blessed country.

The Eighth Circuit’s ruling fully supports my previous observation that it appears a virtual certainty that any federal partial-birth abortion case reaching the Supreme Court would involve a decision by the federal court of appeals applying Stenberg to invalidate the federal act. As I have explained, because AG Gonzales, were he to be appointed to the Court, would be required to recuse himself, the president’s appointment of him to the O’Connor vacancy would predictably result in invalidation of the federal act–a centerpiece of the president’s campaign to build a culture of life–by (in Court jargon) a 4-4 affirmance by an equally divided court. By contrast, virtually any other serious candidate could be expected to provide the decisive fifth vote to uphold the federal act (and overturn Stenberg).

This issue provides just one of countless examples why all of us who admire Gonzales should recognize the elementary fact that his uniquely severe recusal obligations would put in serious jeopardy the very cases that the administration deems of greatest importance to the nation.

Rumors, Rumors


As I’ve posted over on The Corner, everyone who cares to be buzzing is looking to be around in the 4:00 hour, when the president is on U.S. soil. And people seem to focused on the chief justice. Also in The Corner, Ramesh plays with the number FOUR.

The Seamless Garment, Once More


Ed Whelan is absolutely right–as he says in response to my posting on Bishop Skylstad’s letter to President Bush–that “the role of a justice in the American constitutional republic is distinct from that of a legislator.” He is right, too, that the Bishop’s letter betrays a limited understanding of the distinction (even if Ed’s claim that it displays not the “slightest understanding” of the distinction is a bit overstated). And I do not doubt that Ed and I would agree about what to do in the vast majority of constitutional cases that come before the Supreme Court.

Nonetheless I suspect that we differ a bit on the relevance of moral norms in constitutional adjudication. Now, by “moral norms” I mean simply what is true about, say, the morality of capital punishment or abortion; what simply is the case about when people begin (at fertilization or at birth or somewhere in between). For example, Ed asserts without qualification that the right constitutional answer to abortion is no answer; that is, the Constitution (Ed says) does not speak to the issue. For that reason, Roe is wrong. The issue does not belong in federal courts, but rather (at least mainly) in state political processes.

Now, it is true that the Constitution nowhere mentions abortion. But the Constitution guarantees the equal protection of all state laws to all persons. Those state laws include legal protections against being killed. If in truth the unborn are indeed human persons–as pro-lifers including myself characteristically hold–then it would seem that the Constitution might well have something to say about abortion. The Constitution might well say that state laws permitting it at least prima facie violate Equal Protection.

Take another timely example: marriage. The homosexual insurgency mounts a serious and non-frivolous challenge to state marriage laws: They arbitrarily–that is, without reason–exclude couples who (assertedly) can and wish to marry from the legal station of marriage, just (they say) as did laws against interracial marriage. Same-sex marriage advocates say that they suffer unjust discrimination, a violation of Equal Protection, just as did interracial couples of a generation ago. The correct answer back then is the one given by the Supreme Court in Loving v. Virginia: The complaining couples are right legally, basically because they right morally: Marriage is not the kind of thing that, in moral reality, has to do with race. State laws that ban interracial marriage were, therefore, simply a matter of racial discrimination, and that is unconstitutional.

The correct response to the homosexual insurgency is, too, finally based on moral truth (just as, by the way, the correct answer is to any polygamist who might claim a right to plural marriage): Marriage is really the kind of thing that involves (two!) persons of opposite sexes. That is why the law of marriage excludes same-sex couples (and groups).

Ed Whelan might at this point say that the moral truth about marriage is mainly the focal point of legislators, not judges. Just so. Ed might also say that the moral truth about marriage is an insufficient ground for a justice in our constitutional republic to overturn non-conforming laws in, say, Massachusetts. Right again. My point is simply that when traditional marriage laws are challenged as unjust the answer in court must include (whatever else it includes) reliance upon what marriage truly is.

The First Justice?


Hasn’t Ellen Goodman ever heard of the late Earl Warren?

“The First Justice Who Had Ever Been Pregnant”


Gonzales, Recusal, and National Security


Andy McCarthy has a great NRO essay on how Gonzales’s recusal obligations would prevent him from taking part in–and would thereby jeopardize–hotly contested cases involving critical issues of national security. And my NRO essay rebuts those who try to minimize the uniquely severe recusal baggage that a Justice Gonzales would have.

“Al Gonzales, Abe Fortas and Cronyism”


Hope I Didn’t Make You Bet on Two Today


A reliable Hill source tells me: “I was just told that Stevens had two clerk interviews this past Tuesday for the 2006 Term.” Doesn’t sound like someone who is resigning.

Update: Though Bill Kristol just repeated the two-more rumor on Fox (9:20).

Stalking Rehnquist


Fox reports he has left his house.

He had his Nike hat on again, I’m told. (My read: He’s well! No resignation!)


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