Bench Memos

NRO’s home for judicial news and analysis.

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?

Today’s Supreme Court Opinions


The Supremes have issued several decisions this morning, but appear to be putting the most anticipated ones off until next week. In the most notable decision today, the Court ruled 5-4 in Kelo v. City of New London that local governments may seize the private property of homeowners or private businesses for the purpose of promoting private economic development.

Useful early rundown of today’s decisions can be found at scotusblog.


Gonzales, Recusal, and Partial-Birth Abortion


Bill Kristol’s speculation about a Gonzales-for-O’Connor nomination calls to mind a stark but entirely foreseeable consequence of the recusal obligations that a Justice Gonzales would face–the invalidation of the federal partial-birth abortion act.

Recall that in 2000 the Supreme Court, in Stenberg v. Carhart, invalidated Nebraska’s partial-birth abortion statute by a 5-4 vote, with O’Connor providing the decisive fifth vote. A couple years ago, as a key part of his efforts to build a culture of life, the president signed into law a federal partial-birth abortion act.

Any nominee by President Bush to replace O’Connor could reasonably be expected to provide a fifth vote to uphold the federal partial-birth abortion act. But Gonzales, as justice, would almost surely be recused from hearing a case presenting the question of the act’s constitutionality. It seems a safe assumption that, as White House Counsel, he advised President Bush on the constitutionality of the partial-birth legislation at the time that the President signed it. It further seems a safe assumption that, either as White House Counsel or as attorney general, he has advised on or supervised the very litigation that would reach the Supreme Court. Either way, 28 USC 455 would seem to mandate recusal. (Indeed, under the provision of section 455 requiring recusal when a justice’s “impartiality might reasonably be questioned,” his recusal obligation could well apply for his entire career on the Court.)

From what I understand, it appears a virtual certainty that any federal partial-birth abortion case reaching the Supreme Court would involve a decision by the federal court of appeals applying Stenberg to invalidate the federal act. Therefore, the consequence of a recusal by a Justice Gonzales would (absent replacement of any other justices in the majority in Stenberg) be at best affirmance–invalidation of the federal act–by an equally divided court.

There would doubtless be countless more cases of great importance to the Bush Administration–some reasonably foreseeable, such as those involving the USA PATRIOT Act, others impossible to anticipate–where Gonzales’s recusal would likewise be required. In sum, the unique and invaluable role that Gonzales has played and continues to play as the president’s top lawyer is precisely why, notwithstanding his excellent qualifications, it would be sheer folly (or worse) for the president to appoint him to any imminent vacancy.

Look Up--Preemptive Strike


Progress for America has a great pre-Supreme Court vacancy ad.

Bill Kristol’s Crystal Ball


The always insightful and informed Bill Kristol speculates about an imminent O’Connor resignation and a nomination of Gonzales to replace her. His bottom line: “A Gonzales nomination would, in my view, virtually forfeit any chance in the near term for a fundamental reversal in the downward drift of American constitutional jurisprudence. But I now think it is more likely than not to happen.”


Saving Judge Saad


Marshall Manson of the Center for Individual Freedom rings the opening bell in the campaign to rescue Henry Saad’s nomination to the Sixth Circuit Court of Appeals.

Gonzales and Recusal


The Chicago Tribune article that Jonathan cites reports the “fierce opposition” that the nomination of Alberto Gonzales would encounter from conservatives. But let’s assume that conservatives were convinced that Gonzales would make an outstanding justice. I would like to explain more fully my previous suggestion that Gonzales’s recusal obligations under federal law would make it folly for President Bush to appoint him to any imminent vacancy.

Section 455 of Title 28 of the United States Code provides that a Supreme Court justice (or other federal judge) shall disqualify himself from a particular case “[w]here he has served in governmental employment and in such capacity participated as counsel [or] adviser . . . concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.” It further provides that a justice “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”

These requirements were toughened up in 1974. Under the looser standards in effect before then, Justice Rehnquist was plagued by recurring problems stemming from his service as head of DOJ’s Office of Legal Counsel. Among other things, he did not participate in the landmark case of United States v. Nixon. Although the Court’s practice of not stating the reason for a justice’s non-participation in a case makes it difficult to determine with certainty in how many other cases Rehnquist was obligated to recuse himself, circumstantial evidence indicates that the number of cases was in the double figures. In addition, there was considerable (and lasting) controversy over at least one case, Laird v. Tatum, where he declined to disqualify himself.

With the tougher standards now in place, and with the far more extensive role (compared to Rehnquist) that Gonzales has played as White House Counsel in President Bush’s first term and as Attorney General now, it would seem likely that Gonzales would have to recuse himself from virtually every case of importance to the administration. With all the other outstanding alternatives available, what sense would it make to nominate someone with all this recusal baggage?

Nominee List Narrows


As noted by How Appealing, this Chicago Tribune piece is a must read. Apparently, the White House has interviewed potential nominees, and the short list consists of Luttig, Alito, and Roberts. J. Harvie Wilkinson remains in contention, and the possibility of a Gonzales nomination remains. McConnell and Pryor (yes, you read that right) were also among those examined closely, the Trib reports. If accurate, this piece suggests the White House certainly expects the chance to name a nominee, and soon.

No Vacancies?


That is what Judiciary Committee Chairman Arlen Specter is suggesting. Does he know something the rest of Washington does not?

Just for Fun ... Who Voted for Scalia?


Let’s review which Senators serving today were among those who voted, 98-0,
to confirm Antonin Scalia to the U.S. Supreme Court when President
Reagan nominated him in 1985:

Baucus (Democrat in Red State)
Biden (Judiciary Committee)
Byrd (Gang of 14)
Inouye (Gang of 14)
Kennedy (Worthy of note; Judiciary Committee)
Kerry (Worthy of note; known flip-flopper)
Leahy (Worthy of note; Judiciary Committee)
Warner (Gang of 14)

“it is about the Constitution”


Confirmed by the Senate, Bill Pryor was sworn in yesterday.

RE: Gonzales


I don’t speak for social conservatives, but I don’t think their concern about Gonzales can be easily dismissed from a substantive or political viewpoint. They had much to do with the election of the president, and are an important part of the conservative coalition. Indeed, much of the dispute over these nominees centers around social issues, from the Left and Right. I also have some concerns about his tepid comments on illegal immigration. Given the string of immigration cases in which the high court has set national policy, and will continue to do so, I think we can do much better in selecting an originalist. And as Ed Whelan says, any nominee will face very vigorous opposition. We’re likely to be replacing Rehnquist, and we should find someone just as solid.

Supreme Court Nomination Timelines


There hasn’t been a Supreme Court retirement in more than eleven years, making this the longest serving Court since 1823.

Of 100 U.S. Senators, 56 have never even voted on a Supreme Court nominee.

Here’s a chart (posted at the website of Judicial Confirmation Network, information compiled by Progress for America) showing how the timing of the nomination and appointment process has unfolded in the last nine nominations to the high Court, beginning with President Ronald Reagan’s first appointment in 1981.

Gearing Up to Defend Potential Supreme Court Nominee


If there is a Supreme Court vacancy in the near future, the President will have great support for the kind of nominee he has promised the American people: a highly qualified and experienced judge who applies the Constitution and federal law faithfully and impartially. When the liberal pressure groups start slinging mud, defenders of the President’s potential nominee will be ready to counter with the facts, as covered in The Hill.

Chief Justice Gonzales?


Yesterday’s Washington Post story suggesting that, in the event of a resignation by Chief Justice Rehnqust, President Bush might nominate Attorney General Alberto Gonzales to be Chief Justice seems to me highly implausible, but for reasons very different from the likely conservative opposition that the story discusses.

From my limited dealings with him when I was at DOJ and he was White House Counsel, I have a great deal of admiration for Judge Gonzales’s intellect and character. And, although many social conservatives are suspicious of his record as a Texas supreme court justice, it seems to me not unlikely that his experience in Washington has made clear to him how destructive the Supreme Court’s flagrant power grab in Roe v. Wade has been to the ordinary operations of democratic politics–and particularly how it has poisoned the judicial-confirmation process. I wonder, in fact, if a good dose of high-level executive-branch experience (such as Rehnquist, Scalia, and Thomas, alone among the current members of the Court, had) isn’t the best preparation for understanding the proper bounds on the role of the Supreme Court.

There are, nonetheless, three reasons I think it highly unlikely that Gonzales would be nominated:

1. Gonzales, both as White House Counsel and as Attorney General, has been invaluable to the Administration as the chief legal architect of the war on terror. There is no legal role more important to the Administration than the one Gonzales currently plays, and it is far from clear that anyone could fill his shoes.

2. If Gonzales were appointed, he would likely have to recuse himself from virtually all the cases of greatest importance to the Administration. With the loss of Rehnquist’s vote, it is far from clear how the Administration could hope to win any controversial case.

3. It is sheer fancy to think that Gonzales’s confirmation as Attorney General and his Hispanic ethnicity mean that Senate Democrats wouldn’t use his nomination to the Court to (among other things) try to pry into the inner workings of the Administration and into Gonzales’s advice on the war on terror. (As it happens, a former Senate Judiciary Committee colleague reminded me today that Republicans had similar illusions in 1991 that Democrats wouldn’t launch a full-scale attack on Clarence Thomas.) The only sensible operating assumption is that any nominee will face a fierce confirmation battle.

Kennedy Likes One


Via Ann Althouse:

[Senator]Kennedy said that of the three oft-mentioned, younger appeals court judges who are candidates for the chief justice slot – J. Michael Luttig, John Roberts or Michael McConnell – one would be acceptable. “I’m not going to get into which one” because that would be “the kiss of death” for that person, he said.

“who fellow Senators might find it easier to quickly confirm”


The Cornyn for SCOTUS (nonsense?) continued on the CBS evening news tonight.

“Rubber-Stamping” Judges


John Cornyn (SCOTUS long lister) has a letter in the NYTimes today.

McConnell Off Short List?


Orin Kerr tries to read the tea leaves in a recent Washington Post story.

Happy Father’s Day


Before Justice Ginsburg succeeds in outlawing it, and in order to reinforce “traditional sex-based differences in parental roles” (at least insofar as those traditional differences reflect the wonderful and natural complementary differences between mother and father), may I wish all readers who have been blessed with the joys and responsibilities of fatherhood a very happy Father’s Day!

Fittingly enough, I suppose, I will spend a good chunk of Father’s Day weekend preparing my testimony for a Senate Judiciary Committee hearing next Thursday (before the Constitution subcommittee) on Roe v. Wade. Everyone ought to make a practice of reading Roe and its companion case, Doe v. Bolton, every so often. It’s truly amazing how lousy they are. And everyone likewise ought to read the joint opinion in Planned Parenthood v. Casey (1992) to see what a grandiose misunderstanding of the Supreme Court’s role the three Justices (O’Connor, Kennedy, and Souter) who signed their names to the lead opinion have.


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