Bench Memos

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And So It Begins. . .


Fox News Channel has just read Justice Sandra Day O’Connor’s letter to President Bush tendering her resignation, contingent on the appointment of her successor. And so it begins.

Many pixels will be posted on O’Connor and the nomination battle to come. My opening shot is that, whatever else might be said about her character or her significance as the first female justice, O’Connor should be remembered as one of the worst contributors to American jurisprudence in recent history. She was notorious as a “swing vote,” equally maddening to Left and Right at various times. But she consistently held one of the most expansionist views of judicial power, committed always to the most capacious version of the Court’s authority over American life. A few years ago I told my students my “O’Connor rule” for saving oneself a lot of trouble: If the Court has declared anything unconstitutional, and the vote was 5-4, and the fifth vote was provided by O’Connor, the case was wrongly decided. Reading the opinions is necessary only to confirm that judgment.

RE: Rose Garden


He will speak on O’Connor, but news reports say, he will not name a successor today.




The president will be in thhe Rose Garden then, presumably will talk SCOTUS.

Her Letter


Here is the resignation letter from Sandra Day O’Connor to President Bush:

Dear President Bush:

This is to inform you of my decision to retire from my position as Associate Justice of the Supreme Court of the Untied States, effective upon the nomination and confirmation of my successor.

It has been a great privilege, indeed, to have served as a member of the Court for 24 terms.

I will leave it with enormous respect for the integrity of the Court and its role under our constitutional structure.

Sandra Day O’Connor

Deep Breath


The TV commentary is already out of control. She was the first woman. Historic. Obviously. Her replacement DOES NOT HAVE TO BE A WOMAN. Nine seats. All should be most qualified. And, thank you, conservative from this prez. Let’s not get caught up in quotas.


Expect an O’Connor Resignation Today


is the buzz around town. Stay tuned–in here and The Corner

Re: Condemning Souter’s Property


This crude forgery should fool no one, as the text is far too clear and concise to be Justice Souter’s (and doesn’t include the telltale “enquiry”). Still, it’s very much worth a look.

Developers Seeking to Condemn Justice Souter’s Residential Property to Build Hotel in New Hampshire


The Corner covered this, but we haven’t mentioned: Instead of the Gideon Bible and a hairdryer, guest amenities at the “Lost Liberty Hotel” will reportedly include a copy of “Atlas Shrugged” and the U.S. Constitution.

NY Times: “We’re Above the Law”


According to the conventional liberal mythology propagated by the New York Times and others, the Supreme Court is the final and authoritative expositor of the Constitution and all other government officials had better fall in line quickly with whatever it says.

Never mind that the president is required by the Constitution to take an oath that he “will to the best of [his] Ability, preserve, protect and defend the Constitution of the United States”–not the Supreme Court’s mistaken interpretations of the Constitution. Never mind that Marbury v. Madison, which is usually cited as the authority for this proposition, says nothing of the sort and that the Supreme Court itself never made such a claim until 1958. And never mind that Jefferson, Jackson, and Lincoln expressly repudiated the proposition. As Lincoln put it in his First Inaugural Address:

“[T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”
As it happens, however, the New York Times would except its reporters from the obligation to follow even a final and specific court order directed at them. On Monday, the Court refused to review a district judge’s order requiring a Time magazine reporter and a New York Times reporter to turn over notes relating to the Valerie Plame leak investigation. Today, Time magazine stated that it would comply with the court’s order:
“The same Constitution that protects the freedom of the press requires obedience to final decisions of the courts and respect for their rulings and judgments. That Time Inc. strongly disagrees with the courts provides no immunity.”
The New York Times, by contrast, remained defiant and declared itself “deeply disappointed by Time Inc.’s decision.”



This was in a piece yesterday in the Chicago Trib on Alberto Gonzales potential SCOTUS nominee: A “senior administration official” comments on conservative opposition to Gonzales for SCOTUS: “Does he [the President] care enough that that would stop him?” the official asked of whether Bush would nominate Gonzales over conservative opposition. “It would be a benefit to the party over a long period of time, and it would be historic.”

That doesn’t strike me as Rovian genius (i.e. this probably didn’t come from a senior White House official, I’d bet): Besides dissing conservatives, whose enthusiasm and support they’ll need, “Senior administration official” just admitted that a Gonzales nomination would be about politics–”benefit to the party,” including identity politics?

How about nominating the most qualified candidate? Which, for starters, given the recusal problems Ramesh and Ed Whelan have written about, AG Gonzales is not.

Chief Justice O’Connor


I’m actually more sympathetic to David Boaz’s suggestion that Bush elevate O’Connor, and would enthusiastically endorse it if I thought Bush were guaranteed to name her eventual replacement as Chief as well. First, I don’t see it as a “reward” for her jurisprudence. It’s a pragmatic move that would potentially yield political benefits. Second, she’s already the swing justice in most cases, and the Chief’s role is often as a coalition builder. Whereas a CJ Thomas or Scalia would have to trim his sails to be an effective Chief — much as Rehnquist has done in many cases — O’Connor would not, as her sails are already trimmed. So, making her Chief doesn’t weaken the court’s conservative elements. Third, there’s always the chance — admittedly slim in the current political environment — that it would weaken opposition to the nomination of staunch originalist for the open associate spot. This is all moot in the end, however, as 1) I doubt O’Connor would take it, 2) If she did, she would probably feel obligated to stay on the court for more than two additional years casting doubt as to who would nominate her successor, and 3) I don’t think there’s any chance Bush will actually elevate her to Chief.

Chief Justice O’Connor?


David Boaz of the libertarian Cato Institute argues in the American Spectator that promoting Justice O’Connor to chief justice would be an “inspired choice.” I vigorously disagree. Indeed, I think that nominating O’Connor as chief justice would be a monumental blunder, both jurisprudentially and politically.

Boaz’s case, in a nutshell, is that nominating the “moderate conservative” O’Connor as chief justice would help pull professional women towards the Republican party, would be a slam-dunk confirmation, and would enable the president to appoint another chief justice in a year or two when O’Connor retires.

The media routinely portrays O’Connor as a “moderate conservative,” but this label cannot plausibly be applied to someone who pretends that the due process clause guarantees a right to abortion (indeed, an essentially unrestricted right throughout all nine months of pregnancy and a right to partial-birth abortion), that the equal protection clause prohibits differential treatment of homosexual conduct, and that the establishment clause bars governmental affirmation, acknowledgment, and promotion of respect for religion. If her positions on these culture-war issues were merely her own political views, they would place her well to the left. By wrongly entrenching them in constitutional law, she has usurped the power of the people to act through the democratic processes.

If O’Connor has any jurisprudential principle, it is that she should not be bound by any jurisprudential principle. More than any other justice, she has promoted a subjective, totality-of-the-circumstances, multiple-balancing-test approach that engenders confusion and maximizes judicial lawlessness. It is true that O’Connor’s unprincipled approach from time to time yields a vote in favor of results that might be labeled conservative, but she has an uncanny knack for doing so in cases where her vote doesn’t matter.

Rewarding O’Connor would be a flat betrayal of everything that President Bush has promised he is looking for in Supreme Court justices. Whatever marginal political benefit it might have with professional women would be dwarfed by the demoralizing effect it would have on conservatives (yes, including many conservative women) and by the resulting depressed turnout in 2006 and 2008.

Making O’Connor chief justice is also the single event most likely to extend her tenure on the Court. Why anyone would think that she would resign after one or two years, rather than try to establish the legacy of the O’Connor court, is entirely unclear.

There are only two justices on the Court who are plausible candidates for elevation: Scalia and Thomas. No other choice would be “inspired”–at least, not inspired by good judgment.

Stevens & Ginsburg Retire, Write Book


From Peggy Noonan:

Perhaps Justice Ginsburg or Justice Stevens will retire soon and write a memoir: Like Jefferson I held to principle, and like Lincoln I often lacked air conditioning. But in my intellectual gifts I’ve always found myself to be more like Oliver Wendell Holmes . . .

Janice Rogers Brown for Scotus?


Kelo could increase the mo for that movement. Here’s Cornyn yesterday talking up his property-rights bill on the Senate floor:

“In a way, the Kelo decision at least vindicates supporters of the nomination of Justice Janice Rogers Brown to the U.S. Court of Appeals for the D.C. Circuit. That nomination attracted substantial controversy in some quarters, because of Justice Brown’s personal passion for the protection of private property rights. The Kelo decision announced last Thursday demonstrates that her concerns about excessive government interference with property rights is well-founded and well within the mainstream of American jurisprudence.”

Kiss of Death


Rough transcript from a Dem media availability today:

REID: …We have had approximately 10 members of the Supreme Court that come from the United States Senate over the years. And we’ve had about an additional eight or nine that have come from senators who have retired from the Senate.

There are people who serve in the Senate now who are Republicans who I think would be outstanding Supreme Court members. I think that — you want names, I’ll give you names. I think Mel Martinez is a good name. Mike DeWine, Mike Crapo, are three that come to my mind.

I also listened very closely when we went to lunch with the Supreme Court last week, where they suggested — and me not giving the name of the justices but I had at the table, there were four of the Supreme Court justices there — they said that they thought what would be a good idea is to start calling people from outside the judicial system.

I think that’s something that we should listen to. And I’ve conveyed this to anyone that will listen.


REID: I don’t have no names for outside the judicial system. None that I’m going to at least share with you.

QUESTION: When you mention senators, John Cornyn is the only sitting senator with appellate court experience. Do you think the president could also consider him, sir?

REID: I’ve told you the three that I think he should consider.

Supreme Silliness, Part Two


After the ridiculousness of Justice Souter’s adventures in interior decorating, consider the sublimity of Justice Stevens’ foray into the history of theology. In his dissent in the Van Orden case from Texas, Stevens warns darkly of the terrible consequences of choosing among different versions of the Ten Commandments: “There are many distinctive versions of the Decalogue, ascribed [sic] to by different religions and even different denominations within a particular faith; to a pious and learned observer, these differences may be of enormous religious significance.” Why does this matter for constitutional purposes? By permitting the display of one particular version of the Commandments, Stevens says, “Texas tells the observer that the State supports this side of the doctrinal religious debate.”

Horsefeathers. Texas was evincing no support for any “doctrinal” view whatever, when it merely permitted the Fraternal Order of Eagles to erect its monument on the capitol grounds. Were the Eagles–a nondenominational group interested in advancing a Biblically-based morality–choosing sides among Jews, Catholics, and various Protestants by selecting a particular text? Um, no. As Stevens himself admits, the text on display in Texas was a “product of a compromise” precisely intended to achieve a satisfactorily ecumenical effect.

As Justice Scalia points out (in his dissent in the Kentucky case), many Americans are probably not aware today of any age-old sectarian disputes over the text of the Ten Commandments. Scalia in fact declares that he himself had not been aware of it until now–and he probably knows more about theological matters than most of the justices. More importantly, most Americans who do know of these historic disputes don’t feel that they have a life-or-death stake in them. And I’d wager that among those Americans “pious and learned” enough to be up to speed on such a subject, the overwhelming majority are in favor of public displays of the Commandments. Tolerant discussion of how to read and interpret the Commandments is the order of the day in contemporary America–not seething resentments and barely suppressed urges to replay the Thirty Years’ War.

Leave it to Justice Stevens to assume the worst about Americans–and to present us with a perfect Catch-22, that if there is no perfect text of the Commandments on which all believers can agree, none at all can be displayed.

Supreme Silliness, Part One


In one respect the world is right-side-up today: the Washington Post editorial incoherently praises the incoherence in yesterday’s Ten Commandments rulings, while George Will has the goods on what went wrong in the Supreme Court’s religion-clause jurisprudence. (Last week I experienced the strange disorientation of disagreeing with Will while agreeing with the Post editorial on the eminent-domain ruling.) John Podhoretz too is rightly scathing about the Court’s rulings today, in the New York Post.

The lunacy of the Court’s behavior yesterday–anchored by Stephen “it depends on whether I’m in the mood” Breyer–is obvious to the meanest understanding. But it might be amusing to catalogue some of the more asinine things said by some of the justices yesterday.

Let’s start with David Souter, a lifelong bachelor who had the temerity to venture into the thicket of interior design in the McCreary County case from Kentucky (all of us married men know better than to offer opinions on this subject). The county had put the Ten Commandments on display in its courthouse, in the midst of other documents collectively making up an exhibit titled “Foundations of American Law and Government.” One of the other documents was the text of the Star-Spangled Banner, which prompted this snort of aesthetic disapproval from Souter: “it is at least odd to include a patriotic anthem, but to omit the Fourteenth Amendment, the most significant structural provision adopted since the original Framing.”

This is a very strange bit of obiter dictum (Latin for “I have professional typesetters in the basement and can say what I damned well please”). Some might nominate other amendments (any bids for the 16th? 17th? 19th? 22nd?) as the most significant additions to the Constitution “since the original Framing.” And if we’re going to be strict about what was in the “original Framing,” how about the Bill of Rights, which was literally an afterthought? (The county had already included the Bill of Rights in its exhibit, but that didn’t give Souter pause.)

But Souter’s comment here was really an unintended revelation of the extent to which the Court relies on the Fourteenth Amendment as the purported basis of its constitutional rulings–probably for more than half of them. Of course that amendment is “the most significant” to Souter: it keeps him in business. For one thing, its due process clause is the vehicle for the fraudulent “incorporation” doctrine that made it possible for the Court to interfere yesterday in the internal affairs of Texas and Kentucky.

But McCreary County was not posting a law-school curriculum on its courthouse walls. It was reminding citizens of milestone documents of historic and symbolic importance in the American story of law and politics, patriotism and morality, whether they embodied judicially enforceable texts or not. In that light the Star Spangled Banner is a perfectly natural choice–and only a lawyerly nerd would instead choose the Fourteenth Amendment. The national anthem is hard enough to sing at ball games. Anyone care to try putting section 4 of the amendment to music? “The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned . . .”

But Souter wasn’t finished yet with his lecture in the higher criticism. He went on to profess himself “puzzled” by the county’s statement that the influence of the Ten Commandments may be “clearly seen” in the Declaration of Independence (also a part of the exhibit). What? What? There’s no God in that there Declaration, he opined: “the Commandments are sanctioned as divine imperatives, while the Declaration of Independence holds that the authority of government to enforce the law derives ‘from the consent of the governed.’”

Who sabotaged Justice Souter’s copy of the Declaration? In my copy, the first paragraph justifies the independence of America under “the Laws of Nature and of Nature’s God.” Three other references to God appear in the Declaration: as “Creator,” as “Supreme Judge of the World” (take that, you robed ninnies), and as “divine Providence.”

From what source does Souter think the people derive their authority over their government, via that “consent of the governed” of which he makes so much? They get it from the fact that they were created equal, as bearers of natural rights antecedent to all human laws and government. In other words, in the view of the signers of the Declaration, all political authority is grounded in principles for which God is responsible as our Creator.

Perhaps we can schedule a tutorial in American political principles for Justice Souter, conducted by the folks responsible for decorating the courthouse in McCreary County, Kentucky.

Scotus Names


Frist and Reid have talked.

Establishment Clause vs. “Wall of Separation”


The New York Times’s predictably gaseous editorial on the Ten Commandments cases ends with the observation: “As with so much else, the founders, who came up with the idea of a clear wall of separation between church and state, had it right.”

Let’s set aside the NY Times’s implicit appeal to the same originalist principles (i.e., the Constitution should be construed consistent with its original meaning) that it usually decries. Does the NY Times seriously contend that the clause “Congress shall make no law respecting an establishment of religion” was the Framers’ way of embodying “the idea of a clear wall of separation between church and state”? Does it think its readers are so dimwitted or brainwashed to believe this?

The phrase “wall of separation between church and state” derives, of course, not from the Constitution but from President Jefferson’s 1802 letter to the Danbury Baptist Association. As Professor Philip Hamburger of the University of Chicago Law School explains in his magisterial work Separation of Church and State (Harvard University Press 2002)—buy it and read it if you haven’t already done so—”the idea of separation of church and state was very different from the religious liberty desired by the religious dissenters whose demands shaped the First Amendment” (p. 9), and “the constitutional authority for separation is without historical foundation” (p. 481).

Indeed, “the idea of separation did not become popular until the mid-nineteenth century,” when nativist “opponents of Catholicism” combined with “anti-Christian ’secularists’” to demand a federal constitutional amendment guaranteeing separation. “Only when their movement for an amendment failed did they abandon their argument that the U.S. Constitution had not already guaranteed separation.” (p. 10)

Professor Hamburger shows in exhaustive detail that “modern suppositions about the wisdom and influence of Jefferson’s words regarding separation have developed largely as a twentieth-century myth—an account that has become popular precisely because it has seemed to provide constitutional authority for separation.”

There’s much, much more in this outstanding book that ought to reshape the Court’s–and, perhaps, even the New York Times’–understanding of the Establishment Clause.



Here’s National Review’s official NO.


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