Bench Memos

NRO’s home for judicial news and analysis.

What Will Rehnquist Do?


I see two equally plausible–and conflicting–accounts of what is going on:

One theory is that Rehnquist has already communicated to the White House that he will resign soon and that he has agreed to defer his formal resignation until the president is ready to nominate his and O’Connor’s successors. There is no real evidence to support this theory, but it would explain why, contrary to what veterans of the White House Counsel’s office expected, O’Connor’s successor was not named immediately. It would also explain the third-hand rumors that folks at the White House fully expect Rehnquist to resign.

A competing theory is that Rehnquist has decided to continue for at least another year. Under this theory, his health would be stronger than some have reported, and he would have figured that two vacancies at the same time disserves the interests of the Court. One other note: A Supreme Court history buff like Rehnquist would surely be aware that sometime next year (on May 21, 2006, if my quick calculation is correct) he will surpass Chief Justice Marshall’s tenure on the Court.

Marshall was chief for his entire tenure (34 years, 156 days, I think). Rehnquist joined the Court in mid-December 1971 and has been chief for the last 19 years. According to one website, William O. Douglas holds the all-time record of 36 years, 209 days on the Court.

Are You an Originalist?


Take my simple test and find out.


Chairman McCain!


A little bit of John McCain in Arlen Specter would be apreciated right now. Just echo these words, Senator Specter (via Drudge):

Sen. McCain [R-AZ] Strong Words On Supreme Ct Nomination at Dallas Fundraiser: ‘During the campaign, President Bush said he will appoint judges who will strictly interpret the constitution… thinking anything else is either amnesia or ignorance… elections have consequences… whomever he nominates deserves an up or down vote and no filibuster… and an up or down vote is what we will have’…

George Mitchell Back into the Fray?


Two points of interest in Business Week’s Supreme Court story:

1) Former Senate majority leader George Mitchell (D., Me.) may take the lead for Democrats in opposing the president’s Supreme Court nominee. Mitchell is currently chairman of the board at Walt Disney, chairman of the law firm DLA Piper Rudnick Gray Cary, and a member of Staples’ board of directors. How do these companies feel about Mitchell joining the left side of this debate?

2) Democratic strategist Steve Elmendorf is refreshingly candid about liberal groups’ interest in an ugly confirmation battle: “They’re all trying to raise money. The groups have an interest in having a fight. If there’s no fight, there’s no money.” When will the mainstream press report on the parochial motives of the liberal interest groups attacks on constitutionalist nominees?

Senate & Consultation


From a Cornyn-office e-mail:

U.S. Sen. Charles Schumer (D-N.Y.) took to the floor this morning calling for a “summit” between the President and Senators “and have a real back-and-forth” to ensure a consensus nominee. So I tried to find a similar speech from Sen. Schumer’s colleagues during the Supreme Court vacancies that were later filled by Justices Ginsburg and Breyer. So far, I haven’t found any. There were no “summits” to pick those nominees. President Clinton did not consult 60 Senators on Breyer and Ginsburg—as President Bush has already done during the current nomination process. The consultation efforts by President Bush are unprecedented and welcome, but not mandated by the Constitution. As Sen. Schumer, himself, pointed out in his floor speech, “the decision, of course, by the Constitution is solely his (the President’s).”

The truth is that the Constitution imposes no obligation upon the President to seek advice prior to announcing a nomination, nor does it confer any responsibility or authority on individual Senators to recommend nominees to the Supreme Court. The President’s outreach is to be commended—in fact senior members of the Democrat party have already praised his unprecedented efforts—but consultation does not equal co-nomination.

The President nominates, the Senate’s role is to “advise and consent” on that nomination—after the nominee has been selected by the President. As Sen. Patrick Leahy (D-Vt.) said Monday, “I accept the president’s offer in good faith. I told him that. And I told him I would be glad to discuss some names with him. And realize, of course, it’s his decision in the end…”


Consultation: Great Opening


From the Washington Times:

Hours after learning that Supreme Court Justice Sandra Day O’Connor would
retire, Sen. Patrick J. Leahy of Vermont held a press conference and talked
about the importance of President Bush’s consulting Democrats before naming
her replacement.

“Speaking of the Constitution — excuse me just a moment,” the top Democrat
on the Senate Judiciary Committee was saying when he got interrupted by a
staffer for an important phone call.

It was Mr. Bush on the line to discuss the new Supreme Court opening.

Mr. Leahy and other top Senate Democrats, who will gather at the White House
today for discussions about an O’Connor replacement, have said Mr. Bush is
off to a good start consulting them.

Thank You, Dave!


Some of Dave Winston’s “Bush Earned the Right To Pick the Next Justice, Not the Democrats” in Roll Call today (subscribers only):

At the end of the film “Saving Private Ryan,” Tom Hanks’ character, Capt.
Miller, lies mortally wounded with many of his platoon already dead, having
sacrificed themselves for “a cause greater than themselves.” In his last
breath, Miller tells the young soldier, for whom so many have given their
lives, including his own, “Earn this.”

There’s a lesson in that challenge that Democrats seem to have forgotten as
they clamor for “joint power” in selecting the next Supreme Court justice.
In all of their chest-beating calls for “moderation” and “consensus” and
“cooperation,” Democrats, led by Sens. Edward Kennedy (Mass.) and Charles
Schumer (N.Y.), are conveniently ignoring the one stumbling block to their
desire for presidential power sharing — those pesky democratic elections
when a president and his party earn the right to govern through majority
rule and, in so doing, to also choose the nation’s judicial nominees.

Harry Reid’s Advice to the President


More from the outside-the-White House briefing:

LEAHY: If I could just follow up on that, Arlen, I remember having a conversation with President Reagan when he was asking some of us what we thought about the Supreme Court; a similar one with President Clinton. In both cases, I said, Consider somebody outside the judicial monastery.

I’ve talked, as each of us has, with a number of the current justices. I know they see a number of benefits that could come to having somebody from outside the judicial monastery. President Clinton actually offered it to somebody who was not a judge, and that person decided not to accept it. And that’s one consideration, and we discussed that thoroughly.

I see this meeting as a first step in the consulting. I think we can have, and the president can certainly nominate somebody, who would unite us and not divide us, somebody who would go through with a vast majority of both Republicans and Democrats voting for him or her.

That would be a great thing to do for the integrity of the court, for the comfort level of the country, because, after all, the court is there for every one of 280 million Americans; it’s not there for any special interest group for the right or the left. And that, I would hope, could be done.

This is an important decision and it may be one of the first of many on this court. I would hope that when we would go, first, with a touchstone that the Supreme Court is there to protect the rights of all Americans. It’s the ultimate check and balance. And then let’s seek somebody — let’s seek somebody that would unite us, all of us, in the Senate first and foremost, but then in the American public, in such a selection.

I think that it can be done. I hope that it will be done.

What Chairman Specter Said


As released by the RNC:

SPECTER: We’re following the Constitution, which is always a good start — advice and consent. [Someone doesn't read NRO...or the Constitution.] And I think this morning was very productive with the advice part, with the president inviting us in very, very promptly to talk about the entire process.

The scheduling is a matter which we took up in some detail. And Senator Leahy and I have worked very coordinately and we intend to continue that.

I’m flexible. There are some limitations as to August. But as Senator Frist has said, our duty is to have a justice in place by the first Monday in October, when the court starts its new term. And the ending point is that date, and the beginning point is when the president makes the selection.

We want to see to it that we don’t have somebody so-called hanging out there too long.

I think that the word ought to go out that the special interest groups vastly overstate their influence; that what they’re doing is counterproductive and a lot of the times insulting as they gear up these big money-wasting apparatuses.

When we go back to the 1987 — and we hear about that all the time, the Judge Bork proceedings — the interest groups did not defeat Judge Bork — just didn’t happen. It was his judicial philosophy. So that the extent we can turn that off, the whole process is much, much better off.

Characteristically, the hearings start in September. We’re going to be consulting really with the leader, Senator Frist, as to whether we want to pursue August. I think that it’s difficult, but it’s possible. And we’re retaining some flexibility on that subject.

One other topic which came up which I think is worthy of mention and doesn’t reveal too much, and that is the sense — and I’ll attribute this to myself, as a starter — to look for somebody as a nominee that does not come out of the traditional circuit courts; that we have, if not a monolithic approach, very, very close to that, with now Justice O’Connor having been in the state legislature, and the chief justice having been in the Justice Department, and everybody else is from the circuit courts, that it would be good to have some diversity.

SPECTER: As one commentator mentioned, Brown v. Board was decided by a court which pulled the country together, and had three ex-senators on it; might even had four senators on it. Four of us here today; who could tell about something like that?

But that was one item which the president listened. The president, of course, speaks for himself, but it was a good meeting and, as already indicated, a good start.

Specter Watch


The president met with Senate leaders at the White House this morning. A concerned court watcher (of course, these days, who isn’t?!) relays the scene via a cable news shot:

It was in remarks right outside the WH flanked by Leahy, Frist & Reid, right after they had breakfast w/ POTUS re Supremes. Specter said they had talked about the importance of a candidate who would command lots of support. He harked back to 1987 and the interest groups he loves to talk about so much, and he said they were not the ones who defeated the Bork nomination. It was, he said, JUDICIAL PHILOSOPHY that killed the Bork nomination.

Not encouraging.

Scalia for Chief


On Consultation


From today’s White House press briefing:

Let me back up, though. You brought up the Supreme Court, and I would like to update you, in terms of where we are in terms of consultations with the Senate, because the White House consultations have been wide and deep with the United States Senate. I think you heard Senator Hatch yesterday talk about how, in his 29 years in the United States Senate, he has not seen anything like this when it comes to the level of consultation that is going on. It is unprecedented, in his words, and he’s certainly been around the Senate for a long time to see the type of consultations that go on.

But we have reached out to more than 60 senators now, and we have actually consulted with most of those. We are continuing those outreach calls and meetings to listen to what senators have to say and hear what their views are. The President –

Q Did you try to reach all the senators?

MR. McCLELLAN: The President has reached out, himself. The President looks forward to meeting tomorrow with four distinguished leaders in the Senate. He will be listening to what their views are. The President is not prejudging anything. He wants to hear what their views are and hear what they have to say as we move forward on a Supreme Court nominee. The President –

Q Does he want to hear names, Scott?

MR. McCLELLAN: The President welcomes people suggesting names. That’s part of the consultation process. But not only are we going to consult before the nomination is made, but we’ll continue to consult once the nomination is made.

We’ve also consulted with more than half of the Democratic conference in the United States Senate. We’ve spoken with every member of the Senate Judiciary Committee. And we are continuing that outreach as we speak. A number of White House staffers have been reaching out to individual members, and the President is going to be sitting down and meeting with those four leaders tomorrow.

Q What does he think of Specter — what does he think of Specter suggesting O’Connor as Chief?

MR. McCLELLAN: Look, Les, there are going to be a lot of suggestions made. I’m just not going to get into speculating about potential nominees. The President takes this responsibility very seriously. And that’s why he is going through a deliberate and thorough process. That’s why he has instructed us to reach out to senators and get their views and hear what they have to say about a potential nominee.

The President hopes that we can move forward in a dignified and civilized way. You heard him express that. It’s important to elevate the discourse as we move forward. The American people want this nomination process to be something that we can all be proud of. And the President is going to select the nominee who meets the criteria that he outlined — that is someone of high intellect, someone of integrity, someone who — someone of great legal ability and someone who will faithfully interpret our Constitution and our laws and not try to make law from the bench.

RE: senators


My correspondent replies: “A hard time? Of course. But filibuster a former colleague? I just don’t see it. The Senate ‘institutionalists’ like Sen. Byrd wouldn’t do it.”

John Kerry on SCOTUS


From my in-box:

From: John Kerry [mailto:[email protected]]
Sent: Monday, July 11, 2005 2:22 PM
To: Kathryn Lopez
Subject: One Hand Tied Behind Your Back

Dear Kathryn,

Let’s make our principles crystal clear right out of the box.

We will never support a Supreme Court nominee intent on reversing Roe v. Wade and undoing critical civil rights protections. And we will never accept a double standard that says, on a decision vital to America’s future, President Bush’s most extreme supporters can campaign all-out while you and I are urged to be silent.

I am asking you to endorse and help pay for a powerful message that will appear in the days ahead in newspapers across the country. Show the President and the Senate just how strongly you feel about protecting our fundamental freedoms:

From the range of choices the White House is currently considering, America and the Constitution would be best served if President Bush chooses a nominee in the mold of Sandra Day O’Connor, who was named to the Court by no less of a conservative than Ronald Reagan and approved unanimously by the United States Senate.

But President Bush’s most extreme supporters are demanding a nominee who doesn’t think or act anything like Justice O’Connor. They want a rigid ideologue who will reverse what President Bush has called the “settled law” of Roe v. Wade, one who will support their efforts to use the Supreme Court as a battering ram to undo decades of progress on civil rights, Roe v. Wade, and privacy.

They want something else as well.

They want you and me to participate in this momentous debate about fundamental freedoms with one hand tied behind our back. They actually expect us to step aside while they roll over our rights. Let’s prove that we will never let that happen.

While they unleash a multi-million dollar advertising campaign on behalf of President Bush’s choice in close coordination with the White House, you and I are supposed to remain silent — lest we be charged with “rushing to judgment.”

While they conduct a no-holds-barred effort to brush aside any and all questions about the nominee’s record and his or her commitment to protecting individual freedom, you and I are supposed to be silenced for fear of being called “obstructionists” and cowered by their threat to revive the “nuclear option.”

That’s worse than unacceptable. It’s un-American, and it’s not how we carry on public debate in the greatest democracy on earth. Show them that, with the future of the Supreme Court on the line, we won’t stand on the sidelines:

I know I can count on your support in making the following commitment: I will insist on a complete and full examination of the record of President Bush’s nominee. And, if that nominee is intent on reversing Roe v. Wade and essential Supreme Court protections for civil rights, I will use every option I have as a United States Senator to keep that nominee off the Court.


John Kerry

P.S. Don’t let them silence our voices. Go out in your community and spread the word along to everyone you know by passing on this message. We must all commit ourselves to standing up for Roe V. Wade and our civil rights.



A Hill vet e-mails:

The White House should expand the pool of possible candidates to fill either the O’Conner or Rehnquist to current or former GOP Senators. The Senate is one of the last exclusive clubs in the world. It is highly unlikely that the “club” would reject one of their own, and even more so that it would subject a former colleague to a filibuster. While it is true that back in the late 1980s the Senate did reject former Senator John Tower’s nomination to be the Secretary of Defense; but the reason was the “extraordinary circumstances” of his personal life – drinking and womanizing — that Senators found very troubling, and not befitting of the highest office in the Pentagon. However, the Senate did give Senator Tower an up-or-down vote on his nomination.

Among the list of current and former GOP Senators that should be considered for Supreme Court vacancies: Senator John Cornyn (R-Texas), a former member of the Texas Supreme Court; Senator Jon Kyl (R-Arizona), a member of the Senate Judiciary Committee and Chairman of the Senate Republican Policy Committee; former Senator Spencer Abraham (R-Michigan), a member of the Senate Judiciary Committee and co-founder of the Federalist Society; and former Senator John Ashcroft, who was recently Attorney General under President George W. Bush. All of these gentlemen are known conservatives, who would bring to the Supreme Court a keen recognition of the Congress’s role to legislate and the Court’s role to interpret the law. More importantly, Senate Democrats would find it almost impossible to filibuster a former colleague.

ME: I actually don’t think a Cornyn, for instance, would get too much of an easier time–Harry Reid’s recent reaction when asked by reporters about what senators he’d consider made that clear. Still, all we’re doing is guessing right now, so might as well pile on…

“America Deserves Better”


The Judicial Confirmation Network has a new ad out about Kelo. It’s the “the first in a series of advertisements to highlight recent decisions of the U.S. Supreme Court that have ‘violated the Constitution and undermined our democracy.’”

Abortion and “Health”


Jonathan Adler is right that the Eighth Circuit decision on partial-birth abortion may put abortion front and center in the coming fight. Maybe abortion was center-stage anyway. Maybe not: Same-sex marriage and the Court’s continuing devotion to secularism (confirmed in the Ten Commandments cases) are competing for that coveted (?) slot. The Supreme Court will have to review the partial-birth decision. And before it does we have on tap the pending parental-notification case from New Hampshire. The issue in each case is the same: Does the Constitution–oops! I mean: Do Roe and progeny–require a “health exception per se,” as the lower courts are calling it? The right answer should be “no.” But the Supreme Court does not often give the right answer when it comes to abortion.

One thing conservatives might ask about now is whether the United States is going to file a friend-of-the-court brief in the New Hampshire case arguing against the per se health exception. And the man making that call would seem to be. . . the attorney general of the United States Al Gonzales.

Re: Defense of Gonzales on Recusal


I’d like to offer two general comments in response to my correspondent’s effort to minimize the exceptional severity of the recusal obligations that a Justice Gonzales would face:

1. It is, I think, crystal clear that Gonzales would have to recuse himself from critical national-security cases. These include (under 455(b)(3)) cases that are pending in the courts of appeals and on their way to the Supreme Court, like Hamdan and Odah (as well as Padilla, which involves judicial review of the president’s declaration of a citizen as an enemy combatant). They also include (under 455(a)) any other case, now or in the future, that challenges the legality of a specific policy or course of conduct that Gonzales helped design or advise on.

With Gonzales’s recusal, the administration cannot win these cases and establish the sort of precedents that it sees as essential in the War on Terror unless it wins over one of the steadfast members on the Left of the Court–Stevens, Souter, Ginsburg, or Breyer. In short, a Gonzales nomination would place all of these cases in serious jeopardy.

The news is not any better on the domestic culture war (where conservatives have the modest ambition of getting the Court out of the way, not of having it entrench their views). The starkest example is the federal Partial-Birth Abortion Act case, where Gonzales’s recusal will surely result in the invalidation of that critical initial step in the president’s effort to build a culture of life. But there are plenty of others as well.

2. Anyone who does not find these instances of required recusal to be dispositive against a nomination of Gonzales at this time would probably find little point in addressing the breadth of additional recusals. It is only in this further context that my correspondent’s observation about justices’ sitting on cases involving laws they supported as legislators comes into play. I will therefore limit myself to the observation that the Sixth Circuit case that my correspondent cites states merely that “a judge is not automatically disqualified from a case on the basis of having sponsored or voted upon a law [as a legislator] that he is later called upon to review as a judge.” I don’t dispute this proposition, but will merely note that it hardly follows that a White House Counsel who has specifically advised the President on the constitutionality of provisions in legislation in connection with the President’s decision to sign that legislation into law would not be obligated to recuse himself under 455(a) from cases where the constitutionality of those provisions is at issue.

Pre-Post-erous Howler of the Day


It is damning with faint praise, but in the world of liberal newspapers, the Washington Post is a voice of sanity compared to the New York Times, the Los Angeles Times, and the Boston Globe. That said, day in and day out, the Post has been generating ridiculous comments on the pending Supreme Court vacancy.

There was stiff competition for today’s award for Pre-Post-erous Howler of the Day:

Arlen Specter’s advocacy of Justice O’Connor as the next chief justice has been declared ineligible, as the Post cannot be faulted for reporting the deep insights of Chairman Specter.

The Post’s front-page headline stating that the “High Stakes” in the battle are that “Another Defeat Could Tarnish Credibility [of liberal groups] as Advocacy Force” deserves dishonorable mention: “Spare Ralph Neas from Having to Get a Real Job” must be quite a rallying cry on the Left.

The assertion in the Post’s lead editorial that “broad-based support should remain Mr. Bush’s critical goal as he contemplates the replacement of” O’Connor is also an (un)worthy contender, as Senate Democrats have amply demonstrated that they will not support anyone who understands that the Constitution leaves the vast bulk of issues to be decided by American citizens through their state and federal representatives.

But the grand winner is the loopy assertion in that same editorial that justices like Scalia “insist on using the bench as a kind of pulpit for a larger war over American law and society,” display “a lack of modesty and a grandiose conception of the judicial function,” and “imagine themselves” to “be heroes.” The Post has it entirely backwards: There is no justice on the Court with a more modest conception of the judicial role than Scalia. As five or six of his colleagues have used the Court to entrench the Left’s agenda on the ongoing culture war, Scalia has time after time explained that the Constitution leaves these matters to the democratic processes to decide. He has embraced principles rooted in the Constitution–rather than manipulable multi-factored balancing tests–that would constrain justices and thereby reduce the Court’s power. It is the Left, by contrast, that pushes justices to imagine themselves to be heroes.

Bill Kristol Has to Be Wrong


He said on Fox News Sunday and just repeated on FNC that the White House wants to make Gonzales chief justice when Rehnquist resigns. That the White House Counsel’s office is studying the recusal problems.


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