Bench Memos

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Kerr on O’Connor


Orin Kerr’s been blogging his thoughts on the O’Connor resignation here.

No Announcement until After G-8


Fox’s Carl Cameron just reported that there will be no nomination announcement until after the president returns from his trip to Europe to attend the G-8 next week.


Re: On Consultation


Just a reminder that Teddy Kennedy has amply demonstrated that his views are not worth consulting.

Shameless NYTimes


From the second paragraph of the NY Times’ article on O’Connor’s resignation: “Justice O’Connor, 75, is widely viewed as the critical swing vote on abortion . . .”

There are, unfortunately, six Justices on the Court who embrace the power grab in Roe that deprived the American people of their constitutional power to determine abortion policy. It is misleading (and, I suspect, deliberately so) for the NY Times to mischaracterize O’Connor as “the critical swing vote on abortion.” (On partial-birth abortion, yes–but don’t ever expect the NY Times to even acknowledge that issue.)

If the NY Times and others in the liberal media had done a better, more honest job over the years reporting the facts, they would not be reporting the mistaken impressions that they have helped to generate.

RE: On Consultation


Ed, Ted Kennedy just warned the president in a presser than W better consult the Senate. And I hear Harry Reid’s statement (he’s on a plane, evidently) is the same kind of thing.

Sen. Akaka says her placement should be just like her. In other words, The pro-lifers better not not be comfortable with you nom, Mr. President.

Fortunately, the president is the president and does not take orders from Democrats.


Preserving the Right to Own One’s Home


Justice O’Connor’s beautiful dissent in the Kelo case–where the 5-justice majority eviscerated the “public use” requirement of the Fifth Amendment’s Takings Clause and stripped everyday Americans of the right to live in their own homes–ought to be a focus of attention in the upcoming confirmation battle. The three justices who joined O’Connor’s dissent were Rehnquist, Scalia, and Thomas. Among the five justices in the majority was Justice Kennedy.

It follows that anyone who cares about the basic right of Americans to own their own homes–and not to be displaced from their lifelong communities at the whim of petty bureaucrats–ought to insist on justices who are more respectful of the express economic rights embodied in the Constitution (or, in the inappropriate political parlance, more “conservative”) than Justice Kennedy–justices, in other words, like Rehnquist, Scalia, and Thomas. It’s great that O’Connor was right in Kelo, but it would be foolish to believe that anyone who shares her broader approach to jurisprudential issues would be.

Scheduling the Confirmation Hearing


In 1993, Ruth Bader Ginsburg’s confirmation hearing took place exactly five weeks from the date of Clinton’s announcement and four weeks after the official nomination. She was confirmed exactly two weeks later. She had a massive record of cases from her decade-plus on the D.C. Circuit, and also had lots of publications. And, of course, for those who mistakenly think that “balance” is a relevant consideration, her replacement of Justice Byron White altered the Court more than any nominee’s replacement of O’Connor will do.

Bottom line: There’s no reason that the next confirmation hearing need be any later than four weeks from the time of the President’s nomination.

The O’Connor Court


Here’s a piece Ramesh did a little bit ago; subtitle: “Why the Rehnquist Court has been the O’Connor Court, and how to replace her (should it come to that).”



We will also hear a lot of silly talk about “maintaining the balance” of the Court. There is nothing sacrosanct (or “balanced,” for that matter) about the current composition of the Court. And this concept repeats the fallacy of political labeling that I discuss below.

Funny, no one seemed concerned about the shift in balance when Ruth Bader Ginsburg replaced Byron White.

Political Labels Don’t Fit


There will be a lot of debate about whether Justice O’Connor was “conservative” or “moderate” or “liberal”. This debate is worse than silly.

Using political labels for justices obscures the underlying power issues at stake. We need justices who respect the broad realms of activity that the Constitution leaves to the people but who enforce the real limits that the Constitution imposes. Over the last several decades the Court has engaged in numerous lawless power grabs at the expense of the people, particularly on “culture war” issues. Political conservatives don’t seek “conservative” justices who would impose conservative policies on these issues. We seek democracy-respecting justices who will let the people decide how to govern themselves and their communities.

On Consultation


A trusted source reports:

Specter just took questions from the press gallery. Said he wants to consult with Leahy and WH on timing of hearings. Said he spoke with the President a few times on the issue of consultation but, when asked if a failure to consult would be a disappointment, he said “No.” Suggested that pre-nomination consultation is not required.
As discussed here, Specter is entirely correct that pre-nomination consultation is not required. Indeed, as Andy McCarthy has explained, the Framers recognized that such consultation would have a tendency to produce bad choices.

W’s Statement


The Rose Garden
11:16 A.M. EDT

THE PRESIDENT: Good morning. A short time ago I had a warm conversation with Justice Sandra Day O’Connor, who has decided to retire from the Supreme Court of the United States. America is proud of Justice O’Connor’s distinguished service and I’m proud to know her. Today, she has the gratitude of her fellow citizens, and she and John and their family have our respect and good wishes.

Sandra Day O’Connor joined the nation’s highest court in 1981 as the first woman ever appointed to that position. Throughout her tenure she has been a discerning and conscientious judge, and a public servant of complete integrity. Justice O’Connor’s great intellect, wisdom and personal decency have won her the esteem of her colleagues and our country.

Under the Constitution, I am responsible for nominating a successor to Justice O’Connor. I take this responsibility seriously. I will be deliberate and thorough in this process. I have directed my staff, in cooperation with the Department of Justice, to compile information and recommend for my review potential nominees who meet a high standard of legal ability, judgment and integrity and who will faithfully interpret the Constitution and laws of our country.

As well, I will continue to consult, as will my advisors, with members of the United States Senate. The nation deserves, and I will select, a Supreme Court Justice that Americans can be proud of. The nation also deserves a dignified process of confirmation in the United States Senate, characterized by fair treatment, a fair hearing and a fair vote. I will choose a nominee in a timely manner so that the hearing and the vote can be completed before the new Supreme Court term begins.

Today, however, is a day to honor the contributions of a fine citizen and a great patriot. Many years ago, Sandra Day O’Connor chose the path of public service, and she served with distinction as a legislator and a judge in Arizona before joining the Supreme Court. When President Ronald Reagan appointed Justice O’Connor 24 years ago, Americans had high expectations of her — and she has surpassed those expectations in the performance of her duties.

This great lady, born in El Paso, Texas, rose above the obstacles of an earlier time and became one of the most admired Americans of our time. She leaves an outstanding record of service to the United States and our nation is deeply grateful.

Thank you.
END 11:18 A.M. EDT

Is This “Extraordinary”?


So, is replacing Justice O’Connor an “extraordinary circumstance” according to Senate Democrats? We’ll soon find out.

Media Signals


Fox keeps showing film footage of POTUS looking on as Justice O’C swore
Alberto Gonzales in as AG. Are they trying to tell us something?

Greens Gear Up


Environmental activist groups are ready to fight over the next Supreme Court nominee. In a recent release, warned that a Court vacancy could “spell disaster” for the environment. Yet the substance of the release doesn’t support the claim. Most of the recent cases cited to show the Supreme Court can have a big impact on environmental law were decided by nearly unanimous courts, so one new justice won’t make any difference.



The key question facing the White House is when to name O’Connor’s replacement. Obviously the administration wants a new justice before the Court reconvenes in October. Yet Fox reported today that the Senate Judiciary Committee expects to take several weeks to gear up for hearings on any nominee. If that’s the case, activist groups would have ample time to gin up opposition to any nominee–and it could be difficult to get a vote before the August recess.

“Conservative Majority” Lost before O’Connor’s Retirement


Justice O’Connor’s retirement makes some sense, as this past term showed there is no “conservative majority” on the court. Of the seventeen 5-4 decisions this past term, Justice O’Connor joined her four more conservative colleagues only three times.

Vacancy and Abortion


The Left will start screaming that Roe is in jeopardy. Unfortunately, that is not true. The current Court is 6-3 in favor of Roe. The only abortion issue that comes into play is the barbarity of partial-birth abortion, where O’Connor was the fifth vote in favor of invalidating Nebraska’s partial-birth statute. Everyone but the most extreme pro-abortion fringe should welcome overturning that decision.

(For reasons explained here, it seems clear that Judge Gonzales, were he to be replace O’Connor, would not be able to participate in a case involving the federal partial-birth abortion statute and that his non-participation would lead to its invalidation.)

The “Swing” Justice?


Justice O’Connor is often referred to as the “swing” justice who controls the outcome in key cases, but that wasn’t so much the case this past year. While O’Connor was in the majority in ten of the court’s 17 5-4 decisions, so were Justices Thomas, Souter, Scalia, and Kennedy. Moreover, O’Connor only wrote the majority opinion in one 5-4 case, whereas Justices Scalia, Kennedy, and Stevens wrote three apiece.

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.


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