Bench Memos

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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.

Rehnquist’s Wit


When asked by a TV reporter earlier today whether he was about to retire, Chief Justice Rehnquist quipped, “That’s for me to know and you to find out.”

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.


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