Bench Memos

NRO’s home for judicial news and analysis.

Really Now. How Many Senators Would You Ever Even Consider Inviting to a Dinner Party?


From the NYTimes:

[Democratic Staffer] Ms. Greenfeld, who as a young Justice Department lawyer helped prepare Justice Ginsburg for her confirmation hearings in 1993, likens the current situation to preparing for a dinner party without a guest list.

“You don’t know how many are coming, you don’t know what they are allergic to and you don’t even know if you are going to have a chance to go grocery shopping,” she said. “So you are trying to set the table, if you will, based on the facts of the history of what has gone on before.”

Re: The Seamless Garment – Again


I’m pleased that the letter from the head of the U.S. Conference of Catholic Bishops to the President on the Supreme Court vacancy gave pre-eminence to abortion. But I would add to Gerard Bradley’s criticism the fact that the letter displays not the slightest understanding that the role of a justice in the American constitutional republic is distinct from that of a legislator. Simply put, it is not the proper mission of justices, Catholic or otherwise, to “support the protection of human life from protection to natural death” or to “favor restraining and ending the use of the death penalty.”

Roe v. Wade is wrong because the Constitution does not speak to the issue of abortion, not because Catholic teaching condemns abortion. The constitutional obligation of every justice is to restore the issue of abortion regulation to the political processes, not to impose a “pro-life” ruling that the Constitution itself somehow prohibits permissive abortion laws. Conversely, the death penalty is broadly constitutional, and justices should not rule otherwise, irrespective what Catholic teaching says about the morality of the death penalty.

Am I hostile to Catholic moral teachings? Not at all. Indeed, quite the contrary. But in our political system it is Catholic legislators and citizens, not judges, who have the right and obligation to promote the Catholic vision of justice. The reversal of Roe is necessary to enable Catholic legislators and citizens to persuade their fellow citizens to enact legislation that provides significant protection for the lives of unborn human beings. And Catholic legislators and citizens are already free to implement their understanding of additional limits that ought to be placed on the death penalty.


Rehnquist Watch


For what it’s worth, everyone seems to believe 10 -11 tomorrow morning EST we’ll be hearing about another SCOTUS resignation.

UPDATE: That’s not the only rumor. Care for a third opening?

It’s Alive!



GWEN IFILL: I see Sen. Specter nodding to that. How about your idea of an ideal confirmable nominee?

SEN. ARLEN SPECTER: Well, I would pick up on what Sen. Leahy said about getting somebody who is not a graduate from the court of appeals. But to answer your question more directly, I would like to see someone who has a good educational background, a good professional background, somebody who has respect for precedent, who has an understanding of the constitutional continuum where the values of the American people have necessarily shifted over the course of 200 years, and would study the opinions and would try to carry forward the tradition of individualized justice for all Americans.

Back to Bork


More from Newshour:

GWEN IFILL: Sen. Specter, it ideology fair game in these hearings, finding out what people actually believe, not just whether they’re fit, as the president has described, and qualified?

SEN. ARLEN SPECTER: Well, the ideology could come into play if it is very, very, very extreme, and we had the situation with Judge Bork. And when he was for original intent, it seemed to me that that was the most extraordinary view of constitutional interpretation of anybody who had ever been nominated.

For example, when the 14th Amendment “Equal Protection” clause was enacted, the galleries in the United States Senate were segregated, blacks on one side and whites on the other. And that’s what those senators meant by their own intent. Well, that kind of an interpretation didn’t apply in modern days, and if you have something which is just way off the boards, I think it is possible, but it has to be really off the boards.


The Specter of Statesmanship


From last night’s Newshour: We haven’t gotten a nominee yet. If people don’t like the nominee, there’s plenty of time to respond later. You have the interest groups where they’re touting $20 million on each side and from my point of view I think it is totally counter-productive.

We in the Senate realize how important this is. No one needs to remind us. And back in 1987, when Judge (Robert) Bork was up for confirmation hearings, and I was awakened one morning when the famous movie actor Gregory Peck appeared on a commercial, a radio commercial and was criticizing Judge Bork, it almost made me change my vote.

The Seamless Garment--Again


The head of the U.S. Catholic Bishops conference–Bishop William Skylstad of Spokane–recently wrote to President Bush about Justice O’Connor’s successor. Skylstad said that it is not for the bishops to endorse or oppose specific nominees, and he is right: The Church’s pastors should articulate and defend the moral principles at stake in public affairs. They have no special competence when it comes to specifically applying those principles, and surely claim no expertise in jurisprudence. Bishop Skylstad’s letter nonetheless falls short in two important ways. First, on abortion. He calls for jurists who “pre-eminently” would protect human life from “conception until natural death, especially those who are unborn, disabled, or terminally ill.” Bishop Skylstad would have served the Church–and the nation–better had he had used the word “abortion”, and had he urged the president to consider it in more forceful terms. The letter further weakens the message on abortion by unfurling the well-worn “seamless garment.” This is the term Catholics use to describe it when their leaders water down the pro-life message by lumping abortion with other issues–as Bishop Skylstad does in his letter to Bush. He asked the president to consider “jurists who are also cognizant of the rights of minorities, immigrants, and those in need; respect the role of religion and of religious institutions in our society and the protections afforded them by the First Amendment; recognize the value of parental choice in education; and favor restraining and ending the use of the death penalty.” Not content with this laundry list Bishop Skylstad referred to other (unnamed) “fundamental matters,” too. But not to marriage or the family or to the homosexual insurgency or to Lawrence v. Texas, in any way, shape, or form. And that is, to put it very mildly, a real shortcoming in a message meant to identify the moral stakes in the coming appointment.

Just like O’Connor . . .


According to a big article in today’s NYTimes, Senate Democrats say they want to see a judicial nominee who is just like Justice O’Connor. So, does this mean they want someone who believes in judicially enforced limits on Congress’ enumerated powers, including the commerce and spending clauses? Who supports stronger constitutional protection of property rights? Who embraces a pragmatic, law-and-order approach to criminal procedure that rejects absolute enforcement of defendants’ rights? Who supports the constitutionality of school choice? Who (as Wally Olson notes in today’s WSJ) believes out-of-control tort litigation is a serious public policy problem? Who rejects the idea that the U.S. Constitution requires gay marriage?

New Source of Worry


Readers saw that Gonzalez said “My job, currently, is to help the president make this decision” and thought, Acck. What was Dick Cheney’s job before becoming veep? Helping the Bush make the decision

That worry is all part of the plan too.

Clone Rove if it works.

RE: Gonzales


A smart guy doesn’t buy my delusions of O’Connor replacement contentment: “If some folks at the White House aren’t seriously promoting Gonzales, then why have they and their surrogates in recent days been pushing the message that Gonzales would be just fine? If they wanted to stop the criticism, the message would instead be that he’s not a candidate.”

Because Rove is a genius? It’s my only answer. But I thought the twins at the convention mentioning Barbara Bush and Sex and the City in the near same breath was Rovian brilliant too. Who isn’t embarrrassed by their kids now and again?

And, come to think of it, who won the election?


A New Litmus Test?


Interesting that for two whole days, news coverage has been all about Attorney General Gonzales’s being a close friend of President Bush. Is this really earth-shattering news?

Yet all week, the media have largely ignored the outrageous new litmus test announced by the Bad Boy of the Senate Judiciary Committee, Chuck Schumer: Supreme Court nominees’ views on same-sex marriage.

Senators Clash on Questioning a Court Nominee:

“All questions are legitimate,” Senator Charles E. Schumer of New York, a Democratic member of the Judiciary Committee, said in an interview. “What is your view on Roe v. Wade? What is your view on gay marriage? They are going to try to get away with the idea that we’re not going to know their views. But that’s not going to work this time.”

A Media Point on Gonzales


Tim Graham from the Media Research Center points out:

The Washington Post sounds excitable on its front page this morning with the lede: “President Bush tried Wednesday to quell the conservative criticism engulfing Attorney General Alberto R. Gonzales, his longtime adviser, and scolded special interest groups for exploiting the debate over the next Supreme Court justice to raise funds.” Engulfing? If that’s true, why do we have to read deep into the article to find any Al-bashing conservatives? (It’s Manny Miranda and Paul Weyrich at Free Congress, who by themselves are not “engulfing” Gonzales.) Sean Rushton is also in the piece, putting it just so: “There’s a sense that the left is going to create dissension among the right, and the media loves that story . . . waiting for the president to tell the wackos to stuff it.”

When Post reporter Dan Balz tried to get Gary Bauer and Tony Perkins to declare Gonzales unsuitable, they both deflected the questions with vague answers. No “engulfing” there either.

“I’m not a candidate”


Conservative frustration over this SCOTUS opening vis-à-vis the president has to do, as I mentioned again a few posts ago, with an administration leak last week that Gonzales would be an attractive political choice for the president.

Then folks noted his schedule and realized he was making right-wing stomping groups some regular stops, as if he were campaigning.

If the White House is not seriously considering him, why doesn’t Gonzales write himself off for the spot? Well, maybe he did it a little yesterday in Denver:

“I’ve been asked since 2001 whether or not I’d consider going on the court, and I’ve consistently said, ‘I’m not a candidate for the Supreme Court’ – and that remains true today,” Gonzales said. “I love being attorney general. My job, currently, is to help the president make this decision.”
Of course, maybe he has to keep himself a bit in the ring as part of aforementioned genius plan.

Rovian Genius


No he didn’t set up the Red Sox win in some ingenius plan to orchestrate a Hillary senatorial loss next year.

Or did he? (Read more about Rovian genius from Greg Gutfield if you didn’t yesterday and need comic relief today.)

But here’s a maybe serious thought, from a reader, that has crossed my mind:

Is it possible that the SCOTUS nomination is being delayed so that
leftoid groups will wear themselves out on “potential” nominees? Say
Gonzales is not it – let his name come out, and everyone piles on.
Another name gets leaked – everyone piles on that guy. Eventually,
liberals sound rather silly if EVERY name that gets floated is deemed evil
and reactionary. Let them waste their shots in every direction and all
the whining will sound silly eventually. No doubt part of a Rovian evil
master plan.

Sister Souljah, No


I don’t think this is the White House strategy, but I simply don’t know. So a worthwhile e-mail:

Hey, there’s been a lot of talk over the past few days about how Bush could achieve a “Sister Souljah moment” by nominating someone who pro-lifers oppose. I think a nomination like that would instead be viewed by conservatives as a repudiation of Bush’s own principles and promises. It doesn’t take a political genius to recognize the devastating effect that a weak nomination would have on social conservative turnout in 2006 and 2008. A nomination like that would make the first President Bush’s violation of his “no new taxes” pledge appear trivial by comparison.
ME: Rick Santorum pays in an especially harsh way, I’d think.

Bush & Gonzales


From a loyal W supporter, in response to a Corner discussion yesterday:

I love NRO and read it regularly and support it financially. I also genuinely think I’d like all of you folks if I ever met you. Hope I will some day.

Still, at times you can be so self-absorbed, clueless, and pristinely impractical that it makes me shake my head in embarrassment for you. I refer to a frequent inability to dispassionately view the slightly differing perspective even of an ally (and I think you’d accept the President as an ally) when your precious and pure views face a ghost of a challenge.

Just the latest example: the President and Gonzales.

1). Is it possible that the President who has (as far as I can remember) stuck to his promises in the past, just might be planning to nominate a justice along the lines of Scalia and Thomas and has no plans whatsoever of putting forward Gonzales?

2). Is it possible that (knowing this) the President expects his supporters to trust him and is offended that they don’t?

3). Is it possible the President doesn’t understand why a loyal aid whom he has not put forward and is not planning to be put forward has to be preemptively attacked by ostensible allies? And, Jonah, I love the way you write and think, but don’t you think that defending Ashcroft from liberal attacks would have been pointless and unnecessary – a politician develops a thick skin and expects arrows from his opponents. But, getting fragged from within your own camp is much harder to take. Bush takes a constant dose of hatred and bile from the left. It must gall him from time to time when the right throws in its digs and (from his perspective) without present cause or historical basis.

Look, bottom line, attacks on Gonzales are only necessary if you fear the President will nominate him. I don’t blame the President for being piqued at the lack of faith of folks who are ostensibly in his camp. And please don’t say they aren’t attacks – that argument is at best a quibble.

Truly your friend and admirer…

Me: As I have said, I do believe Bush will name the right man (or woman). But I don’t think it is any way self-absorbed or clueless for anyone here or elsewhere to have some concerns. After all, it was an administration official who started this all in the first place–telling a reporter last week that Gonzales would be a great political legacy pick.

And as for President Bush’s comments, he’s gotta back his man. I don’t care so much that he’s his friend, which we know, but AG is W’s AG. He’s gotta have confidence in the man. The wording could’ve been different, but I’m not as freaked as I could be by them. I’m still hopeful. Because this is a president who stuck up for folks like Bill Pryor and Priscilla Owens and Janice Rogers Brown and John Bolton still. A president who sent Paul Wolfowitz to the World Bank. He gets it and can stand up to the Left, thank you very much.

But we shall see. And in the meantime, it is fair to look at and discuss who we’d like in a SCOTUS pick. Will it influence the White House at this point? Maybe, maybe not. But at least we’re (here, anyway) having honest discussions. I think that’s constructive. And what else are we do do judge-wise right now?

This Week


Bob Novak says Rehnquist will resign

O’Connor Was the Scotus Rabbi


Same Song Says So Much


Ted Kennedy, right after Bork was Borked in 1987: ”If we receive a nominee who thinks like Judge Bork, who acts like Judge Bork, who opposes civil rights and civil liberties like Judge Bork, he will be rejected like Judge Bork, just like that,” Senator Edward M. Kennedy of Massachusetts said on the Senate floor.

And 18 yeard later he remains in the same seat, singing the same tune for another SCOTUS opening today.



Brit Hume just reported on FNC that a spokesmen for Reid says his comments today were not an endorsement of Gonzales for the Court.


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