Bench Memos

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President Bush, during a presser with the India’s prime minister just now, talking about candidates for SCOTUS who will be interviewed, added (super-roughly transcribed): I’ve got some people in contention perhaps that I’ve spent some time with…who I know

Great Minds Think Alike. . .


The New York Times (“The Right Kind of Justice“) and L.A. Times (“The Right Conservative“) ran suspiciously similar editorials this weekend. Whose talking points are they from?


The Supreme Court and Foreign Law


Here’s an issue that deserves prominent play in the public discussion of what makes a good Supreme Court justice: In recent years, six justices of the Supreme Court have relied on foreign and international legal decisions and other legal materials to construe the meaning of the U.S. Constitution. It should be no surprise that these are the same six justices who have endorsed the vacuous New Age declaration that “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” For both moves are nothing more than camouflage for the essentially lawless–i.e., unconstrained–view that these six have of their own power as justices to override the political choices that American citizens make through their elected representatives.

The strikingly feeble justification that these justices offer for their illegitimate reliance on foreign law is quite amusing, as I hope this NRO essay of mine from April, “Alien Justice: Ruth Bader Ginsburg vs. the Declaration of Independence,” shows.

I am pleased to report that I will be testifying on this issue at a hearing before the Constitution subcommittee of the House Judiciary Committee next Tuesday. Chairman Steve Chabot of Ohio and other members of the subcommittee are really engaged on this issue, so it should be an excellent hearing. (I will link to my testimony as soon as it is available.)

Chief Determination


Just to emphasize his statement yesterday: Rehnquist wears his trusty Nike hat today. (Decode that here.)

Brains Yes, “Biggest Brain” No


Ann Althouse dissents from the desire to appoint a “genius” to the Supreme Court: “I know a lot of big-brained people in law. I’m not sure which one has the biggest brain . . . Maybe we could sit them in a room and grill them with a series of tests. But there’s a damned good chance the person with the biggest brain would be a disaster on the Court.”


RE: Genius Advice


Rick Garnett’s advice is quite sound. One addition: the desirable candidate is not just any “genius” or outstanding “athlete,” but, first and foremost, the best among those with the appropriate originalist judicial philosophy. To illustrate the point perveresly: Justice Kennedy (Bork III) was chosen not because of his sterling intellectual qualifications, profound understanding of the jurisrudence of constitutional interpretation, or brillance of his record on the 9th Circuit. Rather, he was picked because it was believed that he, despite his mediocre qualifications, would at least vote “right” on the important issues before the Court. Mediocre intellects without a well thought out, coherent jurisprudence (and the self-confidence that comes from that) are ill-equipped to withstand the seductive attempts of the liberals.

Rehnquist Announcement


The Washington Post’s Campaign for the Court blog has a round-up of reactions to the Rehnquist announcement (some of which are quite repetitive). I’m inclined to agree with Rick Garnett’s take quoted here: This simplifies things for the White House, and will make it easier for the President to nominate–and for the Senate to confirm–a solid candidate.

Justice Moore


It seems that the Conservative Caucus wants President Bush to nominate former Alabama supreme court justice Roy Moore to the U.S. Supreme Court. Alan Keyes spoke at the CC press conference making the case, according to this report. Thankfully, I don’t think we have to worry much about this one.



AP is reporting Rehnquist has released a statement saying he is not resigning.

Lubet’s Conflicting Views on Recusal


A reader calls to my attention the fact that Prof. Steven Lubet’s remarks on Gonzales’s recusal obligations appear sharply at odds with the views that he expressed a year ago on the flap over Scalia’s duck hunt. The proposition that “Scalia ought to be the sole judge of his own impartiality” was “wrong,” Lubet declared, and under existing law there was “no good reason for the members of the Supreme Court to arrogate such power to themselves.” The same Lubet who worked himself into a lather over Scalia’s duck hunt (“the more we learn about his duck hunt, the worse it looks”) and emphasized that recusal questions are “serious matters for the United States Supreme Court, which depends on public confidence for its legitimacy,” now appears inattentive to, or blithely dismissive of, the far more serious recusal obligations that Gonzales would face.

By the way, in addition to the powerful opinion that Scalia issued explaining his non-recusal, did anyone notice that he ruled against the interests of the administration and Cheney in a case that was pending at the same time and that presumably was of far greater importance to them–the Hamdi case (which concerned the constitutional rights of a citizen enemy combatant)?

Thanks, President Clinton!


CNN just conducted a live interview with Bill Clinton, who had a few important words of advice for President Bush on how to go about picking a Supreme Court Justice. President Clinton obviously understands that the chief executive of the United States has the sole constitutional responsibility of nominating Supreme Court Justices. (Remember, Clinton’s picks were Ruth Bader Ginsburg and Stephen Breyer.)

Here were Clinton’s prominent pieces of advice.

1. Democrats will launch political attacks on anyone President Bush nominates:

“[T]he people that are your political opponents will politicize anybody you appoint anyway.”

(Note: this describes the behavior only of Democrats, inasmuch as Senate Republicans kindly and quickly confirmed Ginsburg, the former general counsel of the ACLU.)

2. Choose someone whose judicial philosophy is consistent with yours:

“There’s no substitute for appointing someone [who] has convictions that are consistent with yours.”

(He also said that a nominee should be able to “think” and should have “a heart as well as a mind,” but let’s assume that one’s not even being disputed by the liberals in his own Party.)



has been relaesed from hospital (via FNC)

“More Judge Rumors”


Erick-Woods Erickson reports. Most of what he’s got tracks with what I’m hearing.

Senator Hatch on Clinton’s Consultation


Senator Hatch’s outstanding NRO essay today on the Senate’s advise-and-consent role powerfully refutes those who attempt to invoke as precedent Clinton’s consultation with Hatch:

In 1993, President Clinton sought my input when considering a replacement for the retiring Justice Byron White. Some senators are today fond of waving my book Square Peg, in which I described cautioning President Clinton that confirming some candidates he was considering, such as then-Interior Secretary Bruce Babbitt, would be difficult. President Clinton instead nominated Ruth Bader Ginsburg, and she was easily confirmed.

President Clinton sought my input without my demanding it because he believed it would help him fulfill his constitutional responsibility for making judicial nominations. He did so not because Senate Republicans threatened filibusters or demanded some kind of veto power over his nominations. We did not try to impose a “consensus” standard or insist that a nominee meet some super-majority “widespread support” threshold.

Instead, President Clinton sought my input because I had established a cooperative relationship with him, because he knew his nominees would be treated fairly. Senators demanding consultation and threatening filibusters today might instead consider taking the same approach. Perhaps earning consultation will work better than demanding it.

Today’s Articles on Gonzales and Recusal


In an article today on Gonzales and recusal in the Washington Post and in another one in the Wall Street Journal, remarks of Prof. Steven C. Lubet are used to minimize the severe recusal baggage that Gonzales would bear as a Supreme Court justice. I have these comments on Lubet’s remarks:

1. There is nothing in Lubet’s remarks to indicate that he has examined seriously (or is even familiar with) the particular instances of recusal–on important national-security cases and culture-war cases (see here and here)–that Andy McCarthy and I have presented.

2. Lubet’s assertion that the recusal standards “are pretty elastic” is not a fair representation of the very specific language of 455(b)(3) (quoted herein). Moreover, although the outer limits of 455(a) are far from clear, key national-security cases not already covered by 455(b)(3) would fall within the core of 455(a), as Gonzales would be judging the legality of a specific policy or course of conduct that he helped design or advise on. (Scalia’s duck-hunting trip is therefore not remotely relevant to this question.)

3. Lubet’s observation that Gonzales is a named party in cases only in his official capacity is correct but beside the point. I have not argued that his being a named party suffices to require recusal, nor do I regard it as a significant factor.

4. Lubet observes that “[i]t would be entirely up to Gonzales to decide” to recuse and that the “Supreme Court is a law unto itself in these matters.” As a matter of enforceability, that is (almost) surely true. But it would be irresponsible, and an injustice to Gonzales’s integrity, to assume that Gonzales would not faithfully apply the recusal standards.

In short, it would be a serious mistake for anyone to find comfort in Lubet’s remarks.

Genius Advice


David Brooks has some sound judge-picking advice for President Bush:
Ignore the silly calls for non-lawyers and politicos, and don’t worry about historic “firsts,” preserving “balance,” or “identity politics tokenism.”
Instead, Brooks urges, pick a genius. (Not just any genius, of course. Holmes was a genius, but he should not be the model for a Bush nominee.)

Brooks mentions two “powerhouses”: Harvard’s Mary Ann Glendon and Judge Michael McConnell. Both of these lawyers are top-flight scholars and world-class decent people. I was particularly pleased to read a concise statement — in the New York Times, of all places — of Judge McConnell’s invaluable contribution to the debate over the place of religion in public life and over the real, religious-freedom-protecting meaning of church-state separation.

Others have also made Brooks’s point, which is, in a nutshell: The nominee should be the best available athlete, period. After all, Supreme Court Justices and their work really matter; nominations are for the good of the law and the preservation of the Constitution, not to increase turnout in swing districts or certain ethnic communities. My impression is that the President has the votes to get his nominee confirmed; he does not to settle for less or try to find vanilla, viewless unknowns. There are all-stars on the President’s
lists: McConnell, John Roberts, Michael Luttig, and others. I hope the President is looking for a Jordan, and not (no offense!) a Will Perdue or a Luc Longley.

Calming Things Down


Excellent editorials like this one from the Chicago Tribune, calmly explaining the landscape on abortion rights, are the antidote to the ugly battle brewing over the Supreme Court. More please!

Rehnquist Has Been Hospitalized


A Minor Point


Michael Ledeen has another wonderful piece on NRO today, marred only slightly by a misattribution in his final paragraph. He writes: “Justice Holmes taught us that the Constitution is not a suicide pact, and that no one has the right to scream ‘fire’ in a crowded theater.” Oliver Wendell Holmes, Jr. did say the second thing mentioned here, but not the first. That was justice Robert H. Jackson, recently back from prosecuting Nazis at Nuremberg, who observed in 1947 that we should never treat the Bill of Rights as a “suicide pact.”

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.


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