Bench Memos

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More on Consultation


From an Arlen Specter presser today:

QUESTION: If the president does announce a nominee today, would he have done so without consulting the Senate? Would that be a disappointment to you?

SPECTER: No, it would not be a disappointment to me because it’s the president’s call. And I thought about this long and hard, about submitting names to the president, and it seemed to me the wiser course at this particular time was not to do so. I’m well aware of the advice function, as well as the advice and consent function. But I wasn’t asked. Don’t ask, don’t tell. And there’s also greater latitude by senators who have not given advice. And that’s something which is in my mind as well. There are several, though. You could give advice and then not consent even after you’ve given advice. But it wouldn’t be quite so easy. So the independence and separation of power, I think, in this particular situation, after having thought about it long and hard, is best preserved by not giving advice and performing the consent function.

Fourth of July Reflections


Some questions to ponder this Fourth of July weekend and throughout the upcoming Supreme Court confirmation battle:

Do we Americans still believe the “self-evident” truth that “all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness”? Or do we think that it is no longer proper, as a political community, even to acknowledge God and that the Supreme Court bestows and defines our rights?

Do we still believe, as Jefferson and his fellow Founders did, that “virtue is the foundation of happiness”? Or do we think that the “Pursuit of Happiness” is a synonym for selfish hedonism?

Do we still believe that “Governments . . . derive[e] their just Powers from the Consent of the Governed”? Or do we acquiesce in the Supreme Court’s lawless power grabs that deprive us of our rightful power to establish the rules that govern our communities?

Do we still believe that “subject[ing] us to a Jurisdiction foreign to our Constitution” is an abuse that demands vigorous protest? Or are we content to let the Supreme Court look to foreign law to determine the meaning of our Constitution?

Do we still believe, as Chief Justice Marshall declared in Marbury v. Madison, that the Constitution is “committed to writing” so that its “limits may not be mistaken or forgotten” and that to disregard its limits is to “reduce[] to nothing what we have deemed the greatest improvement on political institutions—a written constitution”? Or do we think that the Supreme Court may invent rights that are not in the Constitution and ignore those that are?

Do we still recognize that the Constitution leaves to us as citizens the responsibility for addressing and deciding the grand questions of our age? Or do we surrender to the Supreme Court’s absurd claim that it is its role to determine which interests are somehow part of a New Age “right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”?


Gonzales Campaign


The Battle Is Joined


Committee for Justice’s statement on the O’Connor retirement is here.

TV Schedule, Continued


MSNBC at 5:00; CNN at 2 tomorrow.


Tell Us What You Really Think!


Statement by Kevin J. “Seamus” Hasson, Esq., Founder and Chairman of The Becket Fund for Religious Liberty.

In recent years over the debate over whether we have a living Constitution, this debate has been settled – we have a living Constitution. Her name is Sandra Day O’Connor and thank God she’s retiring.

Her approach to religion law questions made everything a matter of what an imaginary, objective observer would think. But there is no way to know what this imaginary person would think, so Justice O’Connor imagined. That made everything a matter of her subjective judgment and that’s not why we have a Constitution. She was well intentioned, but she was slowly but surely reinventing monarchy.

(In response to the future of the Court)

It all depends on who replaces her; Justice O’Connor was one of two swing votes on the Court. Sometimes she voted with the hardcore secularists who banished religion from public life; sometimes she voted with the conservative wing to uphold the tradition of religion in public culture.

What this will mean almost for certain is clarity. Whether that’s hard left or hard right clarity, or a centrist clarity, all depends up on her successor. Right, left or center, the law itself will be clearer, and that itself is a good thing.

“Tar and Feather, Inc.”


On the right, Progress for America is ready to roll.

Trying to Set the Senate Mood


John Cornyn’s office just sent out his NRO piece from Monday where he says:

*Whoever the nominee is, the Senate should focus its attention on judicial qualifications — not personal political beliefs.

*Whoever the nominee is, the Senate should engage in respectful and honest inquiry, not partisan personal attacks.

*And whoever the nominee is, the Senate should apply the same fair process that has existed for over two centuries — and that is confirmation or rejection by majority vote.

TV Time


Wendy Long will be on MSNBC at 6:00 p.m talking about, oh, I dunno, maybe SCOTUS!

Things People Are Saying


This is all just buzz/prediction stuff among people whose bizness it is to think about these things. Some current worries floated: Bush could wind up naming Gonzales to replace O’Connor relatively quickly. Then Rehnquist resigns. Then the president names a McConnell/Luttig/Roberts/etc. The second nominee softens the blow of the Gonzales nomination on the Right. The Left will be more ready to accept the conservative because the president ticked off conservatives with Gonzales.

Some problems with that scenario: It assumes a lot about the Left. First, the Senate Dems refer to Gonzales as The Torture Memo Guy. Who says he’s going to be an easy confirmation ride? And, despite the joy they’ll get from the president dissing his peeps (which I, naive K-Lo, think my Stud W would never do anyway), who really thinks that will translate into the Left cooperating on not just one but two nominees? You do realize how much mo and money Ralph Neas and co. have riding on this, right?

And–I could be wrong–but I just don’t think the people who are really making these decisions in the White House don’t see the recusal problem with Gonzales as a conversation stopper. He’s just not a practical prospect as a judge–a “half justice” as we’ve talked about here.

I think the people who elected W president will be happy with who he puts up. But that’s based on nothing but a confidence in this man’s principles and instincts.

Now excuse me while I go pray.

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.


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