Bench Memos

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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.

Go with Whatever Novak Says, Or Follow the K-Lo Indicator


Chief Justice Rehnquist, seen leaving his house this morning, had his Nike hat on again. For him to know and us to find out, eh? We’ve figured out his signalling. He’s well, he’s not resigning.

People for the American Way Is the Little Guy?


That’s certainly the impression the Washington Post leaves you with today.

Coronate Her!


My tolerance for Sandra Day O’Connor worship officially reached its limit with Arlen Specter’s talk that she be convinced to return to Court as chief justice should Rehnquist resign.

Yes, you read that right.

On Face the Nation, he said:

“I think it would be very tempting if the president said to Justice O’Connor, ‘You could help the country now,’” Specter said. “She has received so much adulation that a confirmation proceeding would be more like a coronation, and she might be willing to stay on for a year or so.”
How about a little fresh blood–judges who look to law, not politics when deciding cases–instead? Thanks ever so much for the useful suggestion though, Chairman Specter. (I can’t believe we’re even discussing this. Thanks.)

Inspires such high hopes for the confirmation hearings he’ll be running.

Chick Justice


Victoria Toensing had a fun quote last week on the O’Connor spot: “is there a ‘Nina Scalia’ in the house that’s available?”

Abortion, Front and Center


Friday’s decision by the U.S. Court of Appeals for the Eighth Circuit that the federal ban partial-birth abortion places the abortion issue front and center in the debate over whomever President Bush nominates to replace Justice O’Connor. While O’Connor was not the swing vote on abortion — as the “essential holding” of Roe was supported by six justices before her retirement — she was the swing vote on partial-birth abortion, casting the deciding vote to strike down Nebraska’s ban in Stenberg v. Carhart and authoring a concurring opinion suggesting that a more narrow piece of legislation might pass constitutional muster. The Bush Administration is sure to appeal the Eighth Circuit’s opinion to the Supreme Court, and I would expect the justices to take it. Assuming no other justice has changed his or her mind on the subject, O’Connor’s replacement could cast the deciding vote.

Politically, this development is surely to the nominee’s advantage. While some Republicans may be wary of the confirmation fight focusing excessively on Roe, a debate over partial-birth abortion (like parental notification, which is at issue in another abortion case the Court will hear next time) puts the Democrats at a distinct disadvantage. The federal ban passed both houses by wide margins, as many Democrats were reluctant to be seen supporting such a brutal procedure. This will make opposition to a Bush nominee on this issue seem particularly extreme.

The Eighth Circuit decision is here . Howard Bashman rounds up early press coverage here.

Liberal Spin




I think we should consider labeling our activist friends “anti-constitutionalists.” It is not only accurate (after all, if you are not an originalist, then the Constitution is nothing more than something to be manipulated to advance a particular policy and political outcome, hence “living and breathing, etc.), but it has the added benefit of being concise.

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.


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