Bench Memos

NRO’s home for judicial news and analysis.

Kelo, Kinsley, and the Left


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”


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).




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


He’d be a half justice, Ramesh writes.

What to Expect Today


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


Let There Not Be Another Kennedy


Luttig & Roberts


Big Day Today


Olson or Cornyn


Another Nominations Blog


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

A Tactic for War, not a Proposal for Peace


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


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.

Re: Consultation


My NRO essay today on the Senate Democrats’ request for pre-nomination consultation explains why the Clinton-Hatch example is inapt:

Apart from the fact that one should tremble to cite Clinton as a model of presidential conduct to emulate on anything, the Clinton-Hatch example provides a striking contrast to today’s situation.

Hatch (for whom I then worked) openly invoked the principle that the president was entitled to considerable deference on his Supreme Court nominees. For better or worse, his objection in practice to certain candidates was essentially personal–aimed at individuals whom Republicans disliked or who would create undue political difficulties for them–not jurisprudential. Clinton knew that he could work with Hatch and still nominate justices who were, from Clinton’s result-oriented perspective, indistinguishable from the candidates Hatch raised concerns about. The same is not possible for President Bush with Senate Democrats.

Thoughts on Consultation


First, Senate liberals are obviously trying to resuscitate the judicial filibuster with this demand. If the president does not choose to consult or does not choose to give the minority a total veto, look for them to claim it as an “extraordinary circumstance.”

Second, I don’t think consultation is a bad thing per se. If Patrick Leahy (D., Vt.) were as amiable and genuinely non-partisan as Orrin Hatch (R., Utah), it might make some sense. Clinton, after all, went to Hatch and said, “What do I have to do to avoid a big confirmation fight?” and Hatch replied, “Don’t nominate Bruce Babbitt or Mario Cuomo. Ruth Ginsburg would be okay.” As has been documented on this site, Ginsburg was no middle of the roader. Hatch was not refusing the president’s right to nominate a liberal; he just said that two very liberal former governors would provoke more opposition. Moreover, Hatch did not extort President Clinton into consultation with threats of Borking and filibuster.

If President Bush went to Leahy with a list of five or seven conservatives and Leahy’s response was, “Don’t nominate X or Y but A, B, and C would be acceptable,” that would be one thing. But as Senator Schumer (R., N.Y.) has said in the past, his advice would be to recommend Arlen Specter or someone similar. Nan Aron and Ralph Neas have stated they would vehemently oppose ALL conservatives on the president’s list.

If the Democrats want to pick a couple of nominees who they regard as particularly provocative, fine. But the Democratic minority is angling to deny a conservative president, with a conservative Senate–who campaigned on the need for conservative judges–the ability to replace a conservative justice with a conservative. Chutzpah!

Let’s face it: Kennedy, Durbin, Schumer, Leahy, and Boxer are judicial Terminators–they can’t be bargained with, can’t be reasoned with, they don’t feel pity, remorse, or fear. And they absolutely will not stop, ever, until a conservative nomination is dead.

So, why not invite only red-state and moderate Democrats to consult? Bring over Ben Nelson (Neb.), Mark Pryor (Ark.), Evan Bayh (Ind.), Tom Carper (Del.), Joe Lieberman (Conn.), Bill Nelson (Fla.), Kent Conrad (N.D.), Blanche Lincoln (Ark.), Ken Salazar (Colo.), Debbie Stabenow (Mich.), Mary Landrieu (La.), Tim Johnson (S.D.), Max Baucus (Mont.), Robert Byrd (W.Va.), and Jeff Bingaman (N.M.) to the White House and tell them they have 60 minutes, three vetoes, and their home state press will briefed on their behavior after the meeting.

Consultation or Abdication?


Some additional thoughts on consultation over at

Re: Consultation


I noted a few months back that Judiciary Committee chairman Arlen Specter and Sen. Chuck Schumer have also urged the president to consult on judicial nominees. As I said back then, I don’t think it’s necessarily a bad idea. All the president would be doing is listening. It’s respectful to do so, he wouldn’t have to act on the advice, and you never know: He might learn some valuable information. Plus, it will serve the president politically to have done the reasonable and respectful thing if there is a filibuster down the road.

Nevertheless, if the president decides to consult, it should be made clear that he is choosing to do so in his discretion, not because he must do so to comply with the “advice” part of the appointments clause (Art. II, Sec. 2). The Constitution gives the president alone the power to “nominate,” limiting the “advice and consent” role of the Senate to the subsequent “appoint[ment]” of the nominee. There is no requirement to take advice from the Senate prior to making the nomination. As I’ve discussed before, lifting liberally from two great Americans, Alexander Hamilton and Mark Levin:

As Mark Levin has recently pointed out in his bestselling book, Men in Black (pp. 188-89), . . . in Federalist No. 66, [Hamilton] flatly asserted: “It will be the office of the President to nominate, and, with the advice and consent of the senate, to appoint. There will, of course, be no exertion of choice on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves choose–they can only ratify or reject the choice he may have made.” (Emphasis added.)
In Federalist No. 76, moreover, Hamilton offered an extensive explanation of the rationale, precluding any suggestion of a Senate role in nominations. The framers believed that reposing this power in the “sole and undivided responsibility of” a single official, the president, would “naturally beget a livelier sense of duty and a more exact regard for reputation” than could be achieved were the decision left to a committee. For them, a committee (such as the one Senator Schumer suggests) would only serve to multiply the number of “personal considerations” (as opposed to considerations of competence and fitness) that might result in poor choices.

Keeping with this theme of minimizing personal considerations, Hamilton also argued that because the power to nominate would be vested in the president alone, and because the senate would be limited to the power to overrule once the nomination was made, senators would realize that all they could achieve by overruling was yet another candidate of the president’s unilateral choosing. The idea–which has rich resonance today–was precisely to discourage the unreasonable withholding of consent, since the senators “could not assure themselves,” Hamilton wrote, “that the person they might wish would be brought forward by a second or by any subsequent nomination.”

Again, I don’t think this means the president should rule out consulting on nominations. It has for years been a fact of life that senators play an important role in choosing nominees for federal courts in their states, and, as a practical matter, the executive branch, the judiciary, and political parties are so big today that the president is effectively choosing his judicial nominees by committee (or, at the very least, with a lot of advice) anyway. Seems to me there’s no good reason why senators shouldn’t weigh in, too.

But the important point is that the president does not have to consult. This is an important principle to maintain. After all, saying he has to consult would only be a small step away from the next logical argument: namely, that the president should choose from among those candidates the senators recommend. There’s no chance the president (or, one would think, any president) would ever agree to such a thing, but the rules of the game should be clear from the start. It would be better for the president not to consult at all than to leave himself politically vulnerable to the claim that he had agreed that the next justice should be chosen by some bipartisan group of senators.



I’m reminded that President Clinton reportedly sought consultation from Sen. Orrin Hatch when Hatch was the ranking minority member on the Senate Judiciary Committee, so there is some precedent for consultation with the Senate minority.

Ten Commandments and Remaining Cases


Howard Bashman outlines the remaining cases in the Supreme Court’s term for which decisions are to be announced on Monday.

Dems Want Consultation


Every Democratic senator save Robert Byrd (including “independent” James Jeffords) has signed a letter calling on President Bush to “consult” with Senate Democrats before naming any Supreme Court nominee, according to this report. One question: Has any president ever consulted with the Senate minority before naming a Supreme Court pick–when his own party had a majority of the Senate?


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