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Bench Memos

NRO’s home for judicial news and analysis.

The Supremes



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Mark Levin writing in his book, Men In Black, on Lopez and Morrison:
“These two baby steps for judicial responsibility, however, have not established precedents beyond their specific cases, nor have they overturned the other Supreme Court rulings that have given the federal government a degree of power the founders rejected.” (Chapter 9, Socialism from the Bench, p. 140.)

Ruth Bader Ginsburg’s Opposition to Mother’s Day



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My recent posting on the extremist views of Ruth Bader Ginsburg at the time President Clinton nominated her to the Supreme Court included the fact that Ginsburg “had proposed abolishing Mother’s Day and Father’s Day and replacing them with a single androgynous Parent’s Day.”

Rush Limbaugh kindly read this and other parts of my posting on his nationwide radio show. Alan Skorski, who will be publishing a book this fall on Al Franken titled Pants on Fire, has sent me his transcript of a recent radio show in which Franken played this audio clip from Limbaugh and dismissed Limbaugh’s account as an “urban myth from conservatives”:

Limbaugh clip: “You know, Ruth Bader Ginsburg is more extreme than any of these nominees that Bush has brought up. I went through this list of things she actually believes in, that came out in her testimony, such as getting rid of Mother’s Day and Father’s Day and replacing it with Parent’s Day.”

Franken to Mark Luther: “She never actually said anything about Mother’s Day and Father’s Day for Parents’ Day anywhere.”

Mark Luther: “So you think he is just fabricating this completely?”

Franken: “I think it’s an urban myth from conservatives. We got this from Thomas E. Mann, a Brookings Institute Senior Fellow on Government Studies. He told us–I now have it on the highest and closest authority that Ruth Bader Ginsburg has never, in any setting, proposed doing anything with Mother’s Day.”

Sorry, Al, but this is no urban myth. Here is exactly what Ginsburg proposed—in a section titled “Recommendations”:
Replacing “Mother’s Day” and “Father’s Day” with a “Parents’ Day” should be considered, as an observance more consistent with a policy of minimizing traditional sex-based differences in parental roles.
Source: Page 133 of “Report of Columbia Law School Equal Rights Advocacy Project: The Legal Status of Women under Federal Law,” co-authored by Ruth Bader Ginsburg and Brenda Feigen Fasteau in September 1974.

If any other leftist wants to dispute any other aspect of my posting on Ginsburg, please do so publicly, and I will be happy to provide exact quotations and page citations.

It’s especially telling that even the Left finds it hard to believe how extremist many of Ginsburg’s views were. Yet notwithstanding views that were far more out of the “mainstream” than even the grossest caricatures of the most vilified of President Bush’s nominees, Ginsburg was confirmed to the Supreme Court, by a 96-3 vote, a mere six weeks after her nomination.

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Justice Brown, “Activism, ” and Theft



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Today’s anti-Brown editorial in the Washington Post complains about, among other things, her dissenting opinion in San Remo Hotel v. San Francisco. According to the Post, “[Justice Brown] began one dissent, in a case challenging regulation of a hotel, by noting that ‘private property, already an endangered species in California, is now entirely extinct in San Francisco.’ Her colleagues on the California Supreme Court certainly got what she was up to. In response, they quoted Justice Holmes’s Lochner dissent and noted that ‘nothing in the law of takings would justify an appointed judiciary in imposing [any] personal theory of political economy on the people of a democratic state.’”

To say that the San Remo Hotel case involved “regulation of a hotel” is like saying that Moby Dick involved a fish (or, I guess, a sea-dwelling mammal). In fact, as Peter Kirsanow explained a few weeks ago, the case “involved San Francisco’s hotel-conversion ordinance that requires owners of hotels that serve the poor, elderly, and disabled to pay a substantial fee to the city whenever the owners seek to convert their property to tourist use. The fee, amounting to 80 percent of the construction costs of the units to be converted, would be paid into the city’s Residential Hotel Preservation Fund for the poor.” (The fee, by the way, was more than a half-million dollars.)

Justice Brown’s dissent did not, in fact, attempt to “impos[e] [her] personal theory of political economy on the people of a democratic state.” Instead, her dissent was effort to remind her colleagues–and the Post, I suppose–that the Takings clause (which the Post puts in “scare quotes”) is as much a part of the Constitution as, say, the Free Speech Clause. Her goal was not the revival of “Lochnerism” but simply to prevent a striking, glaring effort to shift the entire cost of a social policy onto a few property owners who lacked the political power to protest. My point is not that Justice Brown was, in the end, correct in her interpretation and understanding of the Constitution. It is simply that there is nothing unworthy or “activist” or extreme about taking the Takings clause seriously. Here is the introduction to Brown’s San Remo dissent:

Americans are a diverse group of hard-working, confident, and creative people molded into a nation not by common ethnic identity, cultural legacy, or history; rather, Americans have been united by a dream–a dream of freedom, a vision of how free people might live. The dream has a history. The idea that property ownership is the essential prerequisite of liberty has long been “a fundamental tenet of Anglo American constitutional thought.” (Ely, The Guardian of Every Other Right (1998) p. 43.) “Indeed, the framers saw property ownership as a buffer protecting individuals from government coercion. Arbitrary redistribution of property destroyed liberty, and thus the framers hoped to restrain attacks on property rights.” (Ibid.) “Property must be secured, or liberty cannot exist” (Adams, A Balanced Government (1790) in Discourses on Davila (1805), reprinted in 6 Works of John Adams (1851 ed.) p. 280), because property and liberty are, upon examination, one and the same thing. Private property is in essence a cluster of rights inuring to the benefit of the owner, freely exchangeable in accordance with the terms of private agreements, and recognized and protected by common consent. In the case of real property, this cluster of rights includes the right to exclude persons from certain physical space. In the case of intellectual property, it may include the right to employ a valuable method or process to the exclusion of others. In other words, private property represents zones of individual sovereignty–regions of autonomy within which we make our own choices.

But private property, already an endangered species in California, is now entirely extinct in San Francisco. The City and County of San Francisco has implemented a neo-feudal regime where the nominal owner of property must use that property according to the preferences of the majorities that prevail in the political process–or, worse, the political powerbrokers who often control the government independently of majoritarian preferences. Thus, “the lamb [has been] committed to the custody of the wolf.” (6 The Works of John Adams, supra, at p. 280.) San Francisco has redefined the American dream. Where once government was closely constrained to increase the freedom of individuals, now property ownership is closely constrained to increase the power of government. Where once government was a necessary evil because it protected private property, now private property is a necessary evil because it funds government programs.

From the Senate



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All Republicans voted for cloture, plus the following 10 Democrats:
Byrd
Carper
Conrad
Inouye
Landrieu
Lieberman
Nelson (NE)
Nelson (FL)
Pryor
Salazar

A final, up-or-down vote will occur on the Brown nomination tomorrow at 5 pm, after which a cloture vote on the Pryor nomination will immediately occur. Once cloture on Pryor is achieved, up to 30 hours of debate time on the nomination may occur.

Four More Judges on the Bench



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According to this AP report, the Senate could confirm up to four appellate judges – Brown, Pryor, Griffin and McKeague – in the next week or so. The article also notes that Reid hopes confirming these four judges will put the issue behind him. It also (mistakenly) claims that confirming these four would take care of “almost all of the judges involved in the centrist agreement that averted a showdown over judicial filibusters.” Well, not exactly. The agreement itself addressed nominees Myers and Saad, and the negotiations also concerned Brett Kavanaugh and William Haynes. And then there’s Thomas Griffith, and Susan Neilson . . .

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Brown Vote Tomorrow



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An up-or-down vote on the nomination of Justice Janice Rogers Brown to the U.S. Court of Appeals for the D.C. Circuit is scheduled for tomorrow at 5pm.

65-32



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The Senate just voted to end debate on Brown.

The Liberal Plantation



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Peter Kirsanow has previously noted that “[l]eft-leaning political cartoonists depict [Janice Rogers Brown] as an Aunt Jemima on steroids, complete with exaggerated physical features typically found only in the racist literature distributed by hate groups.” Schumer’s rhetoric (quoted by Kathryn) would seem to suggest that he views Brown as an “uppity black woman.” (The quote marks are to highlight the racist cliché, not to attribute those specific words to Schumer.) All of this is further evidence for the proposition, long advanced by the Wall Street Journal op-ed page, that liberals are very scared by blacks who have dared to escape from the comforts of the liberal plantation.

Boxer Rebellion



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Senator Barbara Boxer yesterday argued that Janice Rogers Brown is “bad for women” (translation: a bad woman) because she “voted to strike down a State antidiscrimination law that provided a contraceptive drug benefit to women.” This was a religious-freedom issue before the court, it wasn’t about Brown’s position on contraception. Rick Garnett wrote about the Catholic Charities of Sacramento v. Superior Court case here.

Yeah, She’s Nominated for Dictator, Charlie



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Senator Charles Schumer’s exalted rhetoric on the Senate floor on the Brown nomination: “What does Janice Rogers Brown want to be nominated for; dictator? Or Grand Exalted Ruler?”

Cornyn for SCOTUS



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so the Houston Chronicle speculates.

Isn’t this all you need to know? “The idea of Cornyn on the high court troubles Ralph Neas, president of the liberal-leaning advocacy group People for the American Way.”

The Post and Justice Brown



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The Washington Post, like so many of Justice Janice Brown’s critics, seems to conflate Justice Brown’s political and legal views. (Incidentally, this is the substance of many of the attacks on Judge William Pryor as well.) The underlying assumption is that if Brown opposes affirmative action or the growth of the welfare state, she necessarily would seek to enact her views from the bench. This view not only does a disservice to Justice Brown’s record as a judge, it suggests that only those without political perspectives (or who share the political preferences of the Post) are suited to the bench. One of a judge’s most important responsibilities is to put aside his or her own political preferences and to apply the law in as neutral and fair a manner as possible. Are judges capable of setting aside their personal views? Yes. One only need look as far as yesterday’s Supreme Court opinion in Gonzales v. Raich for several examples. In that case, it is clear that at least two of the justices voted for a holding that produced an outcome prior to their personal policy preferences. If the Post wants to make the case against Brown, it has to show that she is incapable of doing the same. It’s not enough that she has strong and independent political preferences of her own.

Leader of the Pack



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Harry Reid yesterday: “We’ve spent weeks and weeks debating radical judges. But we haven’t spent a single day debating a health care plan, or a jobs plan, or an education plan that will help hardworking Americans.” (Hat tip)

The Washington Post on Janice Rogers Brown



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The Washington Post’s editorial today advocating the rejection of California supreme court justice Janice Rogers Brown’s nomination to the D.C. Circuit labels Brown a conservative judicial activist and asserts that “[n]o senator who votes for her will have standing any longer to complain about legislating from the bench.” It would be tempting to dismiss the Post’s editorial on the ground that the Post, having voiced no objection to liberal judicial activists, is hardly in a position to preach about judicial activism. But such a dismissal would not deal squarely with the Post’s argument.

I have not reviewed Justice Brown’s record and therefore am not in a position to offer my own assessment. (See Peter Kirsanow’s thorough defense of Brown.) But it is striking how feeble the Post’s evidence in support of its charges is. The Post claims that Brown has “openly embraced the ‘Lochner’ era of Supreme Court jurisprudence”–the era from 1905 to 1937 in which the Court used “substantive due process” to invalidate economic legislation. But in fact Brown has written that the “Lochner court was justly criticized for using the due process clause ‘as though it provided a blank check to alter the meaning of the Constitution as written.’”

The Post also criticizes one of Brown’s dissents in a case that presented a challenge under the Takings Clause of the California constitution. The Post seems not to understand the world of difference between giving force to a provision, like the Takings Clause, that is plainly meant to protect property rights and reading into the Due Process Clause (which provides merely that no state shall “deprive any person of life, liberty, or property, without due process of law”) absolute substantive protections for whatever interests a judge happens to favor.

If this is all the Post can muster against Brown, it has provided no reason for any senator to vote against her nomination.

Thought of the Day



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While nitpicking about Janice Brown’s alleged judicial activism, Sen. Schumer (D, NY) said he was “equally offended” by judicial activism whether from the right or left. Really? When was the last time Schumer complained about federal courts striking down parental notification for minor abortions, or redefining marriage, or discovering protections for computer generated child pornography?

Another Voice



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The folks at SCOTUSBlog have added a Supreme Court nomination blog.

NARAL Pro-Choice California, National Abortion Federation....



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Barbara Boxer is on the floor right now listing off groups that oppose Janice Rogers Brown. It is more than these, but if you were casually listening, it certainly sounded like every abortion-advocacy group there is.

Michael McConnell and the Religion Clause Mainstream



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Last week, in Cutter v. Wilkinson, the Supreme Court unanimously upheld the Religious Land Use and Institutionalized Persons Act, Congress’s latest effort to accommodate the religious needs of prisoners. My take on the decision is available on NRO, here.

It is worth noting, as we all gather our breath for the upcoming judicial-nomination fights, that the (unanimous) Court’s framework for evaluating legislative accommodations of religion closely tracks the analysis advocated by then law professor (now Judge) Michael McConnell in a 1992 article, “Accommodation of Religion: An Update and a Response to the Critics.”
There, Judge McConnell argued that the Constitution required asking whether an accommodation “removes a significant obstacle to the exercise of a religious belief” or rather “induces the person to adopt (or feign) the religious belief in order to receive the benefits of the accommodation”; whether it imposes a “burden on nonbeneficiaries”; and whether it “favors one religion over another.”

Although Justice Ginsburg’s opinion for the Court does not cite this article, these are the same factors that she relied upon in upholding the religious freedom law for prisoners: whether it “alleviates exceptional government-created burdens on religious exercise”; whether it imposes “burdens . . . on nonbeneficiaries”; whether it is available “neutrally among different faiths”; and whether it creates an excessive incentive to change one’s religious behavior. Prior opinions had largely focused on the first factor–whether the accommodation removed a significant government-imposed burden on religion. The Court’s opinion in Cutter marks, I think, the first time it addressed all of these aspects of accommodation in an opinion joined by a majority of the Court.

Some have unpersuasively criticized the church-state views of Judge McConnell, a possible candidate for a future Supreme Court vacancy, as (there they go again . . . ) outside the “mainstream.” Evidently the nine members of the Court–led by left-leaning Democratic appointee Ruth Bader Ginsburg–do not agree.

Mauro on McConnell



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Tony Mauro has this profile of Judge Michael McConnell in the Legal Times. Judge McConnell is likely to be on the short list for any Supreme Court opening. He was actively supported by prominent law professors from across the political spectrum when he was nominated to the Tenth Circuit. The question is how many of his former academic colleagues would support him for the High Court.

Owen Sworn In



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Coverage here.

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