Bench Memos

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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!)

D.C. Victories


From Tuesday’s Roll Call’s “Heard on the Hill” column: And congratulations to Don Stewart on winning the race to put out the first press release following O’Connor’s retirement announcement. Stewart, the spokesman for Sen. John Cornyn (R-Texas), whipped off a statement like nobody’s business within minutes of O’Connor’s statement. Cornyn, chairman of the Senate Judiciary subcommittee on immigration, border security and citizenship, praised O’Connor for her service and reverence for the law and all that good stuff and, of course, he took the opportunity to warn Democrats against blocking the president’s nominee to succeed her.

Stewart, upon hearing that he was the winner of HOH’s Fastest Flak award said, “Eight years working in the Senate, and the first award I win is for being able to click the ’send’ button quickly.”



Joe Biden to Justice Ruth Bader Ginsburg in 1993: “In my view you should not answer a question of what your view will be on an issue that clearly is going to come before the court in 50 different forms, probably.”

“Torture Guy” Is Back


The L.A. Times makes the case against Gonzales for SCOTUS. It’s a very different argument than what you’ll see around NRO. The Times: “This editorial page does not want to see retiring Justice Sandra Day O’Connor replaced by a justice eager to overturn Roe vs. Wade. But that doesn’t mean settling for a nominee who as counsel to the president advised him that it was permissible to disregard core constitutional values and international norms.”

Here’s our editorial on AG for SCOTUS.

Really Now. How Many Senators Would You Ever Even Consider Inviting to a Dinner Party?


From the NYTimes:

[Democratic Staffer] Ms. Greenfeld, who as a young Justice Department lawyer helped prepare Justice Ginsburg for her confirmation hearings in 1993, likens the current situation to preparing for a dinner party without a guest list.

“You don’t know how many are coming, you don’t know what they are allergic to and you don’t even know if you are going to have a chance to go grocery shopping,” she said. “So you are trying to set the table, if you will, based on the facts of the history of what has gone on before.”

Re: The Seamless Garment – Again


I’m pleased that the letter from the head of the U.S. Conference of Catholic Bishops to the President on the Supreme Court vacancy gave pre-eminence to abortion. But I would add to Gerard Bradley’s criticism the fact that the letter displays not the slightest understanding that the role of a justice in the American constitutional republic is distinct from that of a legislator. Simply put, it is not the proper mission of justices, Catholic or otherwise, to “support the protection of human life from protection to natural death” or to “favor restraining and ending the use of the death penalty.”

Roe v. Wade is wrong because the Constitution does not speak to the issue of abortion, not because Catholic teaching condemns abortion. The constitutional obligation of every justice is to restore the issue of abortion regulation to the political processes, not to impose a “pro-life” ruling that the Constitution itself somehow prohibits permissive abortion laws. Conversely, the death penalty is broadly constitutional, and justices should not rule otherwise, irrespective what Catholic teaching says about the morality of the death penalty.

Am I hostile to Catholic moral teachings? Not at all. Indeed, quite the contrary. But in our political system it is Catholic legislators and citizens, not judges, who have the right and obligation to promote the Catholic vision of justice. The reversal of Roe is necessary to enable Catholic legislators and citizens to persuade their fellow citizens to enact legislation that provides significant protection for the lives of unborn human beings. And Catholic legislators and citizens are already free to implement their understanding of additional limits that ought to be placed on the death penalty.

Rehnquist Watch


For what it’s worth, everyone seems to believe 10 -11 tomorrow morning EST we’ll be hearing about another SCOTUS resignation.

UPDATE: That’s not the only rumor. Care for a third opening?


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