Bench Memos

NRO’s home for judicial news and analysis.

Why Delay a Nomination?


Does anyone have any coherent explanation for the White House’s apparent strategy of delaying a nomination? I’m stymied by that decision, which I believe is quite detrimental to the President and his nominee. Despite checking with a number of well-plugged-in people, I can’t find anyone who can articulate a compelling rationale.

The advantages of a speedy nomination are obvious: it allows the President to make his own news and seize the initiative; it prevents the storm of leaks, trial balloons, demands, lines-in-the-sand, and interest group pressure from achieving critical mass; and it enables earlier hearings. The protracted pre-nomination periods during the two Clinton picks are generally thought to have made the President look indecisive, political, and awful.

The White House staff has been fully ready to advise the President on an appointment to replace Justice O’Connor since the spring of 2001, so it can’t be that the White House was unprepared for this. (That would be unconscionable if true.). While some period of time is needed to ensure careful deliberation, thorough consideration of the various factors affecting the choice, and interviews of a couple finalists by the President, 2-3 days should be more than sufficient. I would have expected a nomination on Monday, July 4th, or the morning of Tuesday, July 5th.

Instead, the White House has formally promised that there will be no nomination prior to July 8th, and they appear to be conditioning the press to expect an announcement even later than that — either the week of July 11th or possibly even after Labor Day.

I can only imagine that some of the old hands are drawing the wrong lessons (or over-learning the right ones) from the Bork nomination, in which the August recess was used to good advantage by opponents of the nomination. But Bork was not defeated for that reason; there were many others that played a much greater role. And the interest groups and surrogates on the right are ready this time in a way that they were not in 1987. Finally, and perhaps most importantly, the President’s Party controls the Senate by a comfortable margin. In all phases of this battle, speed would seem to favor the Administration and the nominee. Delay favors their opponents.

So why are they pursuing this strategy? What am I missing?

Possible Nominee John Cornyn


The Washington Post tries to use NRO against him!


Uh, This Sounds Like Consultation


More from the Washington Times:

Mr. McClellan said Mr. Bush spoke yesterday with Sen. Patrick J. Leahy of Vermont, ranking Democrat on the Senate Judiciary Committee, and committee Chairman Arlen Specter, Pennsylvania Republican. The president spoke this week about the Supreme Court with Senate Minority Leader Harry Reid of Nevada and yesterday tried unsuccessfully to reach him, the spokesman said.

He added optimistically: “I just can’t imagine that Democrats are going to want to engage in controversial tactics when it comes to a nominee for the Supreme Court.”

For the Sake of My Sanity, I Have Believe this Isn’t True


From the Washington Times:

The White House was caught off guard yesterday when Supreme Court Justice Sandra Day O’Connor announced her retirement, forcing top administration officials, who had been readying for the departure of the court’s conservative chief justice, to reconsider its options.

Bush administration officials already have interviewed some top candidates for the nation’s highest court, but the group of contenders were front-runners to replace the ailing, 80-year-old Chief Justice William H. Rehnquist, not to fill the seat of the court’s first female justice, who is considered moderate…

Consultation vs. Pre-Nomination Veto


Once we set aside the frivolous argument that the Constitution requires or contemplates that the President engage in pre-nomination consultation with senators, two additional points bear emphasis:

1. The President over the past four years has engaged in an ongoing process of consultation with senators, including Democrats. That process continues. The President and other Administration officials have made clear the qualities that the President is seeking in Supreme Court justice and other federal judges. Senators are free to communicate their own views on those qualities and on specific candidates and have done so. There is no reason to doubt that the President is giving those views due consideration.

2. What Senate Democrats really seek isn’t consultation, but the power to exercise a pre-nomination veto. They want the President to run by them the specific candidates that he is seriously considering so that they can decide whom, if anyone, to pre-clear. As Andy McCarthy has explained, the Framers clearly opposed this sort of role for senators and recognized that it would tend to produce bad nominees.

It is true that President Clinton pre-cleared his two Supreme Court nominees with Senator Hatch. But, as I have explained, the Democrats’ implacable ideological hostility to the sound jurisprudential approach that President Bush favors makes that example entirely inapt:

Apart from the fact that one should tremble to cite Clinton as a model of presidential conduct to emulate on anything, the Clinton-Hatch example provides a striking contrast to today’s situation.

Hatch (for whom I then worked) openly invoked the principle that the president was entitled to considerable deference on his Supreme Court nominees. For better or worse, his objection in practice to certain candidates was essentially personal — aimed at individuals whom Republicans disliked or who would create undue political difficulties for them — not jurisprudential. Clinton knew that he could work with Hatch and still nominate justices who were, from Clinton’s result-oriented perspective, indistinguishable from the candidates Hatch raised concerns about. The same is not possible for President Bush with Senate Democrats.

Bottom line: Lots of consultation has occurred and is ongoing. Senate Democrats have no right to a pre-nomination veto.


Interesting Rumor


Of the SCOTUS rumors, the most interesting is that Senator Frist suggested three potential nominees to Senator Reid — including Fifth Circuit judge Emilio Garza — and Reid rejected all three.

Re: Specter: Gotta Get a Girl Soon


I hope that President Bush focuses on choosing the best candidate, not on satisfying some diversity checklist. That said, he need look no further than Texas to find two outstanding female judges on the Fifth Circuit – Edith Jones and Priscilla Owen – who would promise to be excellent justices.

In one of the few big mistakes of his presidency, the first President Bush selected David Souter over runner-up Jones in 1990. His son’s nomination of Jones would go some way to repairing that error.

Senate Democrats might think that their four-year delay in confirming Owen prevented her from getting the experience needed to be a serious Supreme Court candidate. But all that time Owen was serving as a Texas supreme court justice, and she has ample experience.

National Right to Life Committee on O’Connor Resignation



WASHINGTON — On the occasion of Justice O’Connor’s retirement announcement today, the following statement was issued by the National Right to Life Committee (NRLC).

“Millions of Americans will be watching to see whether the Senate Democratic leadership bows to the demands of certain pressure groups that a nominee must pledge to rule for the pro-abortion side in future cases,” stated NRLC political director Carol Tobias. “Already, some Democratic senators, such as Ted Kennedy, are clearly demanding a litmus test.”

Many commentators in the news media have made observations about the possible impact of an appointment on legal issues pertaining to abortion. Some of these commentaries are well informed, but others contain misinformation and distortions. For example, one oft-heard myth is that the current Supreme Court is divided 5-4 on Roe v. Wade. This is demonstrably wrong. In reality, six of the current justices, including Justice O’Connor, have voted to reaffirm Roe v. Wade’s holding that abortion must be allowed, for any reason, up until “viability” (and for “health” reasons, which has been broadly defined, even after viability). Thus, even if the President were to appoint a successor justice who some day decides that Roe v. Wade was an unconstitutional ruling, there would still be a pro-Roe majority on the Supreme Court.

The misconception that the Supreme Court is divided 5-4 on Roe was refuted by the Annenberg’s Center’s here.

“The Supreme Court is clearly divided 5-4 on one critical abortion issue — partial-birth abortion,” Tobias said.

In the 2000 case of Stenberg v. Carhart, O’Connor voted with the five-justice majority that struck down state laws that banned the brutal partial-birth abortion method, in which a living premature infant is mostly delivered alive before being killed by puncturing her skull and removing her brain. (Justice Kennedy, a vote in favor of Roe’s doctrine of legal abortion for any reason, nevertheless felt it was constitutionally permissible for a state to ban the particular METHOD of partial-birth abortion.) In 2003, President Bush signed into law a federal ban on partial-birth abortion (except to save the life of the mother), but its enforcement has been blocked by the lower federal courts in litigation that is headed back up to the Supreme Court. The President’s nominee may very well cast the deciding vote to determine whether the brutal partial-birth abortion method will remain legal.

Much of the public has also been misled into believing that “overturning Roe v. Wade” means “banning all abortions.” In reality, the effect of even a complete overturning of Roe would be to place questions relating to protection of unborn children and abortion into the hands of elected lawmakers and the American people, rather than a small group of unelected judges. As the leading pro-abortion litigation group expressed it last year: “A Supreme Court decision overturning Roe would not by itself make abortion illegal in the United States. Instead, a reversal of Roe would remove federal constitutional protection for a woman’s right to choose and give the states the power to set abortion policy.” (“What if Roe Fell?,” Center for Reproductive Rights, September 2004)

For information on other related issues, including refutation of the assertion that Roe applies in some special way “in the first trimester,” see

National Right to Life is the nation’s largest pro-life organization, with 50 state affiliates and approximately 3,000 local affiliates nationwide. NRLC works through legislation and education to protect those threatened by abortion, infanticide, euthanasia, and assisted suicide.

Make It Like Ginsburg


Specter: Gotta Get a Girl Soon [Sigh]


More from Specter:

QUESTION: Do you think it’s important that the president consider nominating a woman to replace Justice O’Connor?

SPECTER: I think that it is very important for there to be
gender balance on the court. We have Justice Ruth Bader Ginsburg
there now. But I would not want to say that seats are reserved for
any special religious group or ethnic group or women as opposed to

But I think two is a minimal number, and if this nominee is not a woman, I would like to see an early sensible (ph) nominee to maintain at least two and really moving beyond that to more women on the court. I think there is a dimension there which is very, very important for the administration of justice.

More on Consultation


From an Arlen Specter presser today:

QUESTION: If the president does announce a nominee today, would he have done so without consulting the Senate? Would that be a disappointment to you?

SPECTER: No, it would not be a disappointment to me because it’s the president’s call. And I thought about this long and hard, about submitting names to the president, and it seemed to me the wiser course at this particular time was not to do so. I’m well aware of the advice function, as well as the advice and consent function. But I wasn’t asked. Don’t ask, don’t tell. And there’s also greater latitude by senators who have not given advice. And that’s something which is in my mind as well. There are several, though. You could give advice and then not consent even after you’ve given advice. But it wouldn’t be quite so easy. So the independence and separation of power, I think, in this particular situation, after having thought about it long and hard, is best preserved by not giving advice and performing the consent function.

Fourth of July Reflections


Some questions to ponder this Fourth of July weekend and throughout the upcoming Supreme Court confirmation battle:

Do we Americans still believe the “self-evident” truth that “all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness”? Or do we think that it is no longer proper, as a political community, even to acknowledge God and that the Supreme Court bestows and defines our rights?

Do we still believe, as Jefferson and his fellow Founders did, that “virtue is the foundation of happiness”? Or do we think that the “Pursuit of Happiness” is a synonym for selfish hedonism?

Do we still believe that “Governments . . . derive[e] their just Powers from the Consent of the Governed”? Or do we acquiesce in the Supreme Court’s lawless power grabs that deprive us of our rightful power to establish the rules that govern our communities?

Do we still believe that “subject[ing] us to a Jurisdiction foreign to our Constitution” is an abuse that demands vigorous protest? Or are we content to let the Supreme Court look to foreign law to determine the meaning of our Constitution?

Do we still believe, as Chief Justice Marshall declared in Marbury v. Madison, that the Constitution is “committed to writing” so that its “limits may not be mistaken or forgotten” and that to disregard its limits is to “reduce[] to nothing what we have deemed the greatest improvement on political institutions—a written constitution”? Or do we think that the Supreme Court may invent rights that are not in the Constitution and ignore those that are?

Do we still recognize that the Constitution leaves to us as citizens the responsibility for addressing and deciding the grand questions of our age? Or do we surrender to the Supreme Court’s absurd claim that it is its role to determine which interests are somehow part of a New Age “right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”?

Gonzales Campaign


The Battle Is Joined


Committee for Justice’s statement on the O’Connor retirement is here.

TV Schedule, Continued


MSNBC at 5:00; CNN at 2 tomorrow.

Tell Us What You Really Think!


Statement by Kevin J. “Seamus” Hasson, Esq., Founder and Chairman of The Becket Fund for Religious Liberty.

In recent years over the debate over whether we have a living Constitution, this debate has been settled – we have a living Constitution. Her name is Sandra Day O’Connor and thank God she’s retiring.

Her approach to religion law questions made everything a matter of what an imaginary, objective observer would think. But there is no way to know what this imaginary person would think, so Justice O’Connor imagined. That made everything a matter of her subjective judgment and that’s not why we have a Constitution. She was well intentioned, but she was slowly but surely reinventing monarchy.

(In response to the future of the Court)

It all depends on who replaces her; Justice O’Connor was one of two swing votes on the Court. Sometimes she voted with the hardcore secularists who banished religion from public life; sometimes she voted with the conservative wing to uphold the tradition of religion in public culture.

What this will mean almost for certain is clarity. Whether that’s hard left or hard right clarity, or a centrist clarity, all depends up on her successor. Right, left or center, the law itself will be clearer, and that itself is a good thing.

“Tar and Feather, Inc.”


On the right, Progress for America is ready to roll.

Trying to Set the Senate Mood


John Cornyn’s office just sent out his NRO piece from Monday where he says:

*Whoever the nominee is, the Senate should focus its attention on judicial qualifications — not personal political beliefs.

*Whoever the nominee is, the Senate should engage in respectful and honest inquiry, not partisan personal attacks.

*And whoever the nominee is, the Senate should apply the same fair process that has existed for over two centuries — and that is confirmation or rejection by majority vote.

TV Time


Wendy Long will be on MSNBC at 6:00 p.m talking about, oh, I dunno, maybe SCOTUS!

Things People Are Saying


This is all just buzz/prediction stuff among people whose bizness it is to think about these things. Some current worries floated: Bush could wind up naming Gonzales to replace O’Connor relatively quickly. Then Rehnquist resigns. Then the president names a McConnell/Luttig/Roberts/etc. The second nominee softens the blow of the Gonzales nomination on the Right. The Left will be more ready to accept the conservative because the president ticked off conservatives with Gonzales.

Some problems with that scenario: It assumes a lot about the Left. First, the Senate Dems refer to Gonzales as The Torture Memo Guy. Who says he’s going to be an easy confirmation ride? And, despite the joy they’ll get from the president dissing his peeps (which I, naive K-Lo, think my Stud W would never do anyway), who really thinks that will translate into the Left cooperating on not just one but two nominees? You do realize how much mo and money Ralph Neas and co. have riding on this, right?

And–I could be wrong–but I just don’t think the people who are really making these decisions in the White House don’t see the recusal problem with Gonzales as a conversation stopper. He’s just not a practical prospect as a judge–a “half justice” as we’ve talked about here.

I think the people who elected W president will be happy with who he puts up. But that’s based on nothing but a confidence in this man’s principles and instincts.

Now excuse me while I go pray.


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