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Bench Memos

NRO’s home for judicial news and analysis.

Court Adjourned!



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No resignation (yet). No jokey announcement (we’ve been played with before).

Split



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Texas, where the 10 C are outside the courthouse, are ok.

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Filesharing



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Internet file-sharing services will be held responsible if they intend for their customers to use software primarily to swap songs and movies illegally, the Supreme Court ruled Monday, rejecting warnings that the lawsuits will stunt growth of cool tech gadgets such as the next iPod.

The unanimous decision sends the case back to lower court, which had ruled in favor of file-sharing services Grokster Ltd. and StreamCast Networks Inc. on the grounds that the companies couldn’t be sued. The justices said there was enough evidence of unlawful intent for the case to go to trial.

A Cable



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RE: Miller & Cooper



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Andy McCarthy’s doing a happy dance on that one.

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Judith Miller & Matt Cooper



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lose–Court news # 2 of the morning (denial of cert)

10 Commandments



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Cannot display….court rules…

Update: 5-4

UPDATE: This is the Kentucky case.

Kelo, Kinsley, and the Left



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Last week’s Supreme Court decision in Kelo v. City of New London, which effectively eviscerated the “public use” requirement of the Takings Clause, illustrates a broader tendency among the six overtly non-originalist Justices who dominate the Court: Consistent with their own policy preferences, these Justices will ignore or dilute express rights (e.g., right to keep and bear arms) that the Constitution actually confers and will invent rights (e.g., abortion) that it does not confer.

Michael Kinsley’s column on Kelo provides an amusing illustration how the Left would literally rewrite the Constitution. In asserting that Kelo “was about the requirement that any government taking must have a ‘public purpose,’” Kinsley evidently thinks (or wants his readers to think) that the text of the Takings Clause has a “public purpose” requirement, rather than a “public use” requirement.

Other examples of language that the Left pretends that the Constitution itself embodies include, of course, the “separation of church and state” and a generalized “right of privacy,” the contours of which judges must divine. Ruth Bader Ginsburg even pretends that the Constitution’s preamble contemplates that it is judges, rather than “We the People of the United States, whose task it is to “form a more perfect Union.”

“Genial Apostle of Tolerance”



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That’s how the NYTimes piece on Kennedy describes the justice (in case you haven’t had the time to read the 400 pieces on the Court today).

“Extremists”



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I just got a galley copy of Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America by Cass Sunstein. The press release is all over Bill Pryor (you’ve heard it before: he wages war on VAWA, Voting Rights Act, etc.).

Let me daydream a moment. Yes, yes. That’s President Bush. He’s…what’s that?…ah yes. He’s nominating Bill Pryor to SCOTUS in a picture-perfect Rose Garden ceremony. And, what’s that? Barbara Boxer imploding.

Gonzales’s Big Problem



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He’d be a half justice, Ramesh writes.

What to Expect Today



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Lyle Denniston has an informative post. He notes that retirements are rarely announced from the bench, so if there is a retirement today, it will most likely be announced later in the day. Of course, no one tells the Supreme Court, especially this Supreme Court, how to do anything.

And the Lobbying



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Let There Not Be Another Kennedy



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Luttig & Roberts



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Big Day Today



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Olson or Cornyn



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Another Nominations Blog



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Another blog devoted to judicial nominations is “Students for the Judiciary.” According to the site description, the blog is part of “a non-partisan student-led campaign to provide objective information on judges under consideration for lifetime appointments to the federal judiciary. We are committed to the ideal of an independent judiciary and believe that judicial nominees should be able to divorce their personal political opinions from their ability to interpret the Constitution. As such, qualified nominees should be able to secure a broad base of political support.”
There’s reason to be skeptical about this group’s neutrality, however, as it grew out of the “Filibuster for Democracy” campaign that sponsored FilibusterFrist.com.

A Tactic for War, not a Proposal for Peace



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The recent Memorandum of Understanding on Judicial Nominations signed by seven Republican senators and seven Democrats for the first time in our history formally recognizes the principle–if only temporarily–that a minority of senators can block a presidential appointee to the federal bench whom a majority would vote to confirm. As such, the Memorandum deals a significant blow to the president’s constitutional appointment power.

The Democrats in the Congress are now trying for more. Democratic party chairman Howard Dean, echoed by a phalanx of Democratic senators and representatives, including Harry Reid, Charles Schumer, and Nancy Pelosi, are arguing that the president has an obligation to “consult” with Senate Democrats prior to making judicial nominations, in particular for the Supreme Court. Schumer has said that the MOU is a warning to the President not to “nominate someone that’s way out of the [mainstream] and consult with Congress.” Indeed, the MOU itself advances the argument that the word “advice” in Article II, Section 2 of the Constitution means that the president should “consult with members of the Senate, both Democratic and Republican, prior to submitting a judicial nomination to the Senate for consideration.”

This is part of a long-running gambit by the Democratic party, as the party out of power in both political branches of government, to seize for itself some role in the appointment process not given to it by the voters. Several years ago, before his party hit upon filibusters as a way to wrest some control over appointments from the president and the Senate majority, Sen. Ted Kennedy and other Democrats made the same argument in a series of public statements and letters to President Bush. In the pages of the Washington Post, for example, Senator Kennedy urged President Bush to engage in “genuine consultation with the Senate” over Supreme Court appointments in order to avoid a confirmation fight and to respect what Kennedy asserted was “the Framers’ careful decision to have the Senate share the appointment power.”

While the idea is superficially appealing–after all, who could really oppose a little bipartisan consultation?–it is both incorrect as a matter of constitutional theory, and unworkable in practice.

First, let’s be clear about what the Senators are really proposing. They are not proposing anything that resembles what ordinary people would recognize as “consultation.” Instead, in the world of judicial nominations, “consultation” is Senate-speak for “advance veto.” Senators routinely complain about a lack of “consultation” not because they were not consulted but because, after extensive consultation, they did not get what they wanted. What the Senators are really asking is that the president share with them in advance the names of individuals he is considering for nomination to the Supreme Court and then eliminate any candidate to which they object.

Thus, Senator Schumer in a letter to the president concluded by saying that he wants “the opportunity to evaluate any candidates you are considering and provide input before any nomination is made.” And Senator Leahy admitted in his letter that his goal is “to help select a nominee.”

This is plainly not what the Framers of the Constitution had in mind. The records of the constitutional convention indicate that the original proposal in the Virginia Plan was to have Congress as a whole appoint judges. On James Madison’s suggestion, this was amended to provide for appointment by the Senate as the smaller, more exclusive body. However, the framers had serious concerns with even this form of legislative nomination. This concern derived from their belief that legislative appointments tended to be driven more by logrolling, petty politics, local and regional considerations, and factional struggles than by higher-minded consideration of the merits of particular candidates.

The final compromise–nomination by the president with confirmation by the Senate–was based on a proposal by Alexander Hamilton. He explained it in the Federalist Papers as deriving principally from the view that an individual is more likely than a collective body to make choices based on merit: “one man of discernment is better fitted to analyze and estimate the peculiar qualities adopted to particular offices than a body of men.” Hamilton further explained that the Framers chose to vest the president with the sole power of nomination in order to serve another critical objective related to ensuring quality appointments that could not be served by giving legislators a role: accountability. According to Hamilton, the president would bear “sole and undivided responsibility” for making the selections, so that “[t]he blame of a bad nomination would fall upon [him] singly and absolutely.”

The resulting text of the Appointments Clause envisions no role for the Senate, still less for individual senators, in the nomination process. It says that “[t]he President . . . shall nominate, and by and with the advice and consent of the Senate, shall appoint” Supreme Court justices. The Constitution could not be plainer that it is the president’s responsibility alone to nominate. The Senate’s role is limited to the process of appointment, by which the president’s nominee actually becomes vested with the powers of office. This understanding is confirmed by the historical practice in the Founders’ generation: On the unanimous advice of Madison, Jefferson, and Jay, President Washington, who sat through the entire constitutional convention, never consulted with the Senate prior to making nominations.

The wisdom of the Framers’ design has been borne out through the generations. While presidents, including President Bush, virtually always welcome advice and suggestions from Senators prior to nomination, “genuine consultation” of the type being pushed on President Bush by Howard Dean and Senators Reid, Leahy, Schumer, and Kennedy would be totally unworkable. Providing names and receiving feedback would slow the nomination process to a crawl and allow the Senators to dictate its timing. Names shared by the White House would immediately be passed to left-wing interest groups and sympathetic journalists, and potential nominees deemed undesirable would be preemptively attacked in an effort to frighten off the putative nominee and/or the president and his advisers if the president were not cowed by the Senators’ private predictions of trouble.

Moreover, given the vast gulf that exists between the president and these senators ideologically, it is virtually certain that they would never bless a nominee that shared the president’s vision of quality judging. The process of “consultation” would thus become a mere setup for failure and a powerful weapon for the president’s most committed senatorial adversaries in the blame game they would play when the subsequent confirmation fight got ugly.

President Clinton’s consultations with Senator Hatch, which the Democrats now cite as a model and a precedent for what they propose, actually provides an instructive counterpoint. Hatch did not demand to know whom the president was considering in advance; he merely suggested some names to Clinton. Moreover, Hatch suggested the names of the most eminent liberal judges then sitting on the federal appellate bench, even though he knew to a certainty that they held views contrary to his own on issues as fundamental as Roe v. Wade. It is no wonder that President Clinton found them acceptable.

By contrast, the Democratic senators are now demanding that Bush “share” the appointment power with them, advise them of his choices in advance, and let them “help select” the next justice. In doing that, there can be no doubt that they would show none of the open-mindedness that Senator Hatch displayed in recommending Justice Ginsburg and Justice Breyer. Far from supporting candidates skeptical of the Supreme Court’s abortion jurisprudence, Democratic senators have vowed to use every means at their disposal to block any Bush nominee who does not violate his or her ethical obligations by pledging fealty to Roe in advance of confirmation. And the Democrats’ relentless campaign over the past two years to define some of the country’s highest quality, mainstream judicial conservatives as unacceptable “right-wing ideologues” shows just how ideological they are prepared to be in exercising any power they are given in the process of judicial appointment.

In short, the problem is not one of process, it’s one of substance. Liberal Democratic senators want liberal Supreme Court justices, and a conservative Republican president wants conservative justices. This circle just can’t be squared, and the proposals for “genuine consultation” should be seen for what they are: a tactic for making war over an eventual nomination, not a strategy for securing peace. This particular conflict will have to be worked out according to the durable process laid out in the Constitution itself and used since the beginning of the republic. The president alone will choose the nominee, and the Senate will either give or withhold its consent.

Stopped Clocks



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A stopped clock is right twice a day, as the old saying goes. Today the Washington Post is a reminder of that adage, as Justice John Paul Stevens was a reminder of it yesterday, in his opinion in the Kelo eminent-domain ruling handed down by the the Supreme Court. Over on The Corner, there’s been much discussion of the case, and I find myself in sympathy with what Ramesh Ponnuru and Jonathan Adler have said over there. But today’s Washington Post presents me with a real case of cognitive dissonance. I find George Will completely unpersuasive, and I’d be prepared to defend every word of the Post’s editorial. This doesn’t happen to me very often.

Absolutely everything in Kelo turns on a) whether the “public use” requirement can be satisfied by some plausible notion of “public purpose” notwithstanding the fact that some or all of the private property seized finds its way into other private hands; and if so, b) what are the relative positions of the legislative and judicial powers in deciding that it has in fact been satisfied in the taking at hand? Stevens, for the Court, answers a) yes, and b) the judiciary has a very minimal role. Kennedy’s concurrence answers a) yes, and b) the judiciary could afford to be, in some vague Kennedyesque way, a little more involved. O’Connor’s dissent, joined by Thomas, Scalia, and Rehnquist, answers a) yes, and b) the judiciary must strictly monitor the legislature in such cases. Thomas’s dissent answers a) no, unless the public itself has the right to employ the property now placed in new private hands (as with, e.g, a railroad), which makes for the most stringent possible judicial supremacy in answer to b). The four opinions thus span a continuum from judicial restraint to judicial activism, with Thomas, I’m afraid, at the wrong end of the spectrum.

O’Connor’s dissent is, frankly, hilarious. It takes a special kind of nerve for her to dissent in this case, when she was the author 21 years ago of the awful ruling in Hawaii Housing Authority v. Midkiff, which endorsed a straightforward land redistribution scheme far worse than what Kelo presents, and she does not repudiate it here. (Rehnquist joined her in Midkiff, by the way–a unanimous ruling.)

As one might expect, Thomas’s dissent offers the more formidable originalist challenge to the majority’s view. I have long thought that no matter how fresh or how venerable a precedent may be, it is not binding if it is an excrescence on the Constitution. And Thomas wants to scrape off two barnacles, of 20 and 50 years’ age. But he doesn’t stop there. He reaches back to some turn-of-the-20th-century decisions with which he finds fault, and even (to his credit) reports on the equivocal holdings of various state courts in the very early 1800s; he simply prefers some of these holdings to others, but for no very good reasons. I don’t think his arguments are up to the task of opposing all these precedents, especially when he turns (as he did in the Lopez ruling on guns in schools 10 years ago) to Samuel Johnson’s dictionary for a definition of the word “use.” This is feeble. Foraging in dictionaries is not how one finds the most natural usage of ordinary words in legal texts. I may be tiresome in citing my hero John Marshall, but I can’t identify one case in which he turned to a dictionary–and Thomas’s favorites were surely available to him.

I’ll end where I would have both begun and ended, had I written for the Court in this case. I would have held against the property owners on grounds that the takings clause of the Fifth Amendment has no application to the actions of state and local governments. It is interesting that Thomas, so interested in the original understanding, has nothing to say on the great fraud of the “incorporation” of the Bill of Rights by the Fourteenth Amendment.

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