Bench Memos

NRO’s home for judicial news and analysis.

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.

Reverse Kerry! He Voted Against Him Before He Voted for Him


Harry Reid is endorsing Gonzales for the Court, it would seem. But he voted against him for AG.

Reid Meet Reid


Harry Reid today:

Reid also chided conservatives for criticizing Gonzales while Bush was overseas. “I think it’s too bad the president has to respond in Denmark about statements from the far right,” he said. “People here have gone a little too far.”
The criticism started before the president left the States. But further, what’s this? Who’s this? Hmmm. Harry Reid calling the president a “loser” while he was in Europe back in May.


The Coming Web Attack from the Left


Byron York maps out the likely future, Scotus-wise.

“He Has to” Consult


What Consitution is Ken Duberstein reading? I just caught the tail end of him on Inside Politics and he said somewhat emphatically that the president will have to consult the Senate on his SCOTUS nominee. If you believe that read McCarthy and McCarthy again and Whelan and Berenson and I’m sure more I’ve forgotten to link to.



It stacks the deck against conservatives to include only invalidations of *federal* laws. That excludes every time the Court strikes down a local display of the Ten Commandments, a state ban on partial-birth abortion, a state death-penalty law, etc. If the federal government enforces federalism limits on the Congress, the test counts that as activism. If the Court subverts federalism by striking down local practices, the test excludes that altogether.

Reality TV!


RE: That Poll Question


From Gerry Daly:

I can’t get to my own darn blog to grab the link, but while that Gallup question you asked is an eye roller when looked at by itself, the way they did the survey is actually pretty fair, since they asked a similar question about the Democrats. They asked if people think it is very likely, somewhat likely, not very likely, not at all likely that the Democrats will try to block Bush’s nominee for “inappropriate” political reasons.

The result is extremely encouraging for our side, as 58% of all adults said that it is “very likely”. 28% more said it was somewhat likely. That means that 86% (!) of all adults think it is likely that the Democrats would engage in an inappropriate obstruction, compared to 12% who say it is unlikely of the Democrats to do so.

That result put a big ol’ smile on my face.

Activist Judges?


I’ve never particularly found the use of the term “judicial activist” all that useful because it can mean a lot of thing to a lot of people. But Paul Gewirz and Chad Golder write in today’s New York Times that, when you define “activism” as overturning federal laws, then the liberals on the Supreme Court are its least activist members. I find that to be a particularly strange definition of activism. Conservatives do not get upset every time a law is struck as unconstitutional. I don’t hear anyone seriously challenging the role of judicial review in modern law (although we all have scratched our heads at times about the proper role of the Courts). Indeed, there have been many a decision of recent years that conservatives were upset that a law was NOT struck down. Take, for instance, the McConnell decision on campaign finance reform (mea culpa — I helped defend the law in the lower courts in my capacity as a DoJ lawyer). There, conservatives were upset not because an activist court struck down a law, but because the Court strayed from the text of the First Amendment’s guarantee of free speech in the realm of political speech where it’s protections should be the strongest. But where conservatives do get upset is when a Court strikes down federal, state or local laws on the basis of a constitutional provision that does not exist. You can search long and hard for a sodomy clause or an abortion clause in the constitution, but you’ll never find one. Yet the Court has, over the last thirty years, incrementally expanded the scope of the Due Process Clause of the Constitution to protect an intangible (and unknowable) right to privacy. The constitution says very little about privacy, at least in the sense that it has been interpreted by the Court. (The clause simply provides that the state shall not deprive a person of life, liberty or property without due process of law. It is, at best, a guarantee of fair procedures by the government and says nothing of the substance of a federal or state law). In either case, upholding a law that should be held unconstitutional under the text of the constitution or striking down a law that should be upheld, the upshot is the same: a Court has exceeded its role by disregarding the text of the Constitution. So whatever the definition of “activism” is, it is more precise to talk about fidelity to the constitution’s text. Gewirz and Golder’s analysis of who is most activist under their definition does little to advance that discussion.

Great Poll Question


CNN/USA Today/Gallup Poll:

Next, we’d like you to think about what would happen if a Supreme Court Justice retired this year and George W. Bush nominated someone to fill that vacancy. How likely do you think it is that Bush would appoint someone to the U.S. Supreme Court who would let their religious beliefs inappropriately influence their legal decisions: very likely, somewhat likely, not too likely, or not at all likely?

The Left vs. American Citizens


Shannen Coffin’s outstanding essay, “The Left’s Last Stand,” reminds us what’s really at stake in Supreme Court nominations:

Every time the people of the country speak through their legislatures on the hot-button issues of the day–abortion, homosexual rights, affirmative action, you name it–the army of lawyers of the Left line up at the courthouse steps to put a stop to the will of the people.
In clamoring for a “moderate,” the Left is seeking yet another rootless Republican appointee who can be snookered into entrenching the Left’s agenda in the guise of constitutional law. To cite just a few examples, the Left wants a Court that will radically redefine (i.e., abolish) marriage, strip “under God” out of the Pledge of Allegiance, create a constitutional right to clone, and look to United Nations bureaucrats to determine what our laws mean. So-called conservative extremists, by contrast, recognize that American citizens ought to retain their rights to decide these and other issues and to govern themselves and their communities within the broad bounds established by the real Constitution.

Whose Opportunity Is This Anyway?


Just a follow up to my piece today. Much has been said that this is a huge opportunity for the Right, and for the president to extinguish a debt owed to them. It seems to me, however, that this isn’t an opportunity to gain all much ground by the Right. Yes, the conservative bloc might pick up a vote on Roe if the president plays his hand right, but judging by his recent embrace the reasoning of Casey (the passage that Justice Scalia called the “sweet mystery of life” dictum — establishing a right to define one’s place in the cosmos) in the homosexual sodomy case, Lawrence v. Texas, Justice Kennedy isn’t going anywhere on Roe. So there are still 5 solid votes for Roe on this Court. For the left-wing nuts to be screaming that “a woman’s right to choose” hangs in the balance is a baldface lie, and they know it. But they can raise more money with that sort of overheated rhetoric. In reality, the Left realizes that this is their opportunity, not the Right’s. Even if the president gets this decision right, at best, Anthony Kennedy (gulp) becomes the crucial swing vote on just about every major issue facing the Court: homosexual marriage, reasonable regulations on abortion, religion in American life, the role of foreign law in American law, etc. Making Justice Kennedy the fulcrum of this Court may send shivers down the spines of many a conservative. So before everyone gets excited about the opportunity, think long and hard about the consequences of a mistake here. In the last several terms, Justice O’Connor voted more with Chief Justice Rehnquist than with any other Justice. So it is a bit of a misstatement to say that her seat is so much more important to gaining ground for the conservatives than his. The president has to get this right just to preserve the middle ground that O’Connor at times pulled back from the liberals on the Court. If he gets it wrong, things could be lost for a long time.

A SCOTUS Drinking Game


Take a shot (can you, this early?) every time an abortion activist awkwardly avoids the word “abortion.” This is from a Pacifica interview with Planned Parenthood’s current president (all the bold is mine):

KAREN PEARL: Sure. We are, of course, very concerned that the Justice that did step down was Sandra Day O’Connor, because she was the critical swing vote. She was the Justice who really held in her decisions the Constitutional protection for women’s reproductive health. And so, right now, we see reproductive rights, women’s health and safety to be extremely in danger, and because we do have this case before the Supreme Court, Ayotte v. Planned Parenthood, we particularly are focused on the requirement, if you will, that the President choose somebody who is very much in the mold of Sandra Day O’Connor, who understands the importance, the primacy of keeping women’s health and safety and who will continue to uphold the fact that women ought to be healthy and ought to have medical procedures that are safe for them.

KAREN PEARL: We’re not really prepared at this moment to talk about any particular nominee. What we are willing to say is that we will not accept any extremist or right wing ideologue as a nominee. We must make sure that whoever is put forward by President Bush is somebody who will protect women’s health and safety. And so, we will go through a careful process before we make any comment about specific nominees to vet where they stand on protecting women’s health and women’s safety.

Ah Yes, This Perfectly Encapsulates NR’s Feelings Toward Gonzales


A Dan Wasserman cartoon in today’s Boston Globe:

For a less witchy look, see our recent editorial against Gonzales for SCOTUS, and flashback to Rivkin/Casey pro-Gonzales for AG back in the day (not so long ago), Andy McCarthy also pro-AG for AG, as well as Shannen Coffin in the same effort.

“Left’s Last Stand”


That’s how Shannen Coffin frames the coming fight in an NRO piece today. Also on homepage: Byron York on the big corporations funding the Left’s last stand. Vincent Phillip Muñoz on O’Connor’s religion problem. Matthew Franck on the truth about a Lincoln quote. Of course, keep on checking here and The Corner for more.

Schumer’s Moment


“This is the moment he has been working toward for years,” Byron York writes in The Hill.

Schumer’s Ready to Obstruct


From the NYSun: Citing a recent bipartisan compromise on the treatment of judicial nominees, Senator Schumer said yesterday that Democrats on the Senate Judiciary Committee are prepared to use judicial philosophy as justification for thwarting any of President Bush’s nominees to replace Justice O’Connor.

The comments by New York’s senior senator raised the possibility that any nominee who is acceptable to most Republicans would be blocked by a filibuster in the Senate – the same situation that lawmakers had earlier avoided….

…”The bottom line is that the agreement said ‘extraordinary circumstances,’ but it also said the extraordinary circumstances are at the discretion of each of the individual senators,” said Mr. Schumer, who sits on the judiciary committee. “So you’d have to ask each of them, they signed it. But I’ve talked to some, and of course judicial philosophy could be within in the realm of extraordinary circumstances. For me, for sure, and I think for the people who signed the agreement, most of them.”…

…”To simply look at the resume and say, ‘You’re fine’ – I don’t buy it,” Mr. Schumer said. “I think that person’s views on environmental rights, on voting rights, on civil rights, on women’s rights – this is the most important appointment that a president can make.”



I’m completely guessing here, but I think Rove can joke because Gonzales is not really an option. Why? Because of the recusal issues Ed (see here and here)and Ramesh (see here) have gone into. He would be a partial justice and that’s a big deal–most especially on SCOTUS spot #1, but one any, really.


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