Bench Memos

NRO’s home for judicial news and analysis.

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.

Chief Justice Breyer?


At the same CED forum today at which the Zogby poll results were released, AEI’s Norm Ornstein stated that President Bush can choose between “temperate” nominees to the Supreme Court and “in-your-face” nominees. As “temperate” nominees, in the event the chief justice resigns, Ornstein cited elevating Stephen Breyer to chief justice and nominating John Roberts as associate justice. His example of “in-your-face” nominees was Scalia as chief justice and Janice Rogers Brown as associate justice.

I have a great deal of respect for Justice Breyer’s intellect (as well as for Norm Ornstein’s). But the idea that it would be “temperate”–as opposed to abject surrender–for the President to appoint as chief justice someone who is (among other things) the author of the ghastly partial-birth abortion ruling in Stenberg v. Carhart, a former staffer to Ted Kennedy, and an appointee of Presidents Clinton and Carter is, I think, an indication of how unhinged even otherwise very reasonable Democrats have become on judicial nominations.

One can, of course, argue that it makes little difference whether Breyer is an associate justice or chief justice, as he has only a single vote either way and the powers of the chief are not considerable. But the symbolic significance of elevating Breyer–and thereby crediting and rewarding his unconstrained understanding of the Supreme Court’s role–would be devastating.

President Bush has won two elections in which he campaigned on the promise that he would appoint judges like Scalia and Thomas. If he is to elevate an existing justice to chief justice, Scalia and Thomas are his two alternatives.

Good News From Zogby


A Zogby International poll of American business leaders, released this morning at a Committee for Economic Development forum on judicial nominations, contains some encouraging results. (The stated margin of error is +/- 6.3%.)

68% of business leaders view the confirmation of President Bush’s judicial nominees as important to their business.

Notwithstanding significant (61%) support for the Gang of 14’s anti-cloture reform agreement, a full 46% agree that “[i]t would have been better for the Republicans to enact the nuclear option, preventing filibusters on any judicial nominees.” 52% disagreed. (Zogby characterized this as even, as the results are well within the margin of error—i.e., the real sentiment could be 52-46 the other way.)

73% believe that both parties should agree to consider judges “solely on their qualifications, and not their ideologies.”

71% agree that Senate Democrats were “abusing the use of the filibuster.”

67% disagree with the proposition that Democrats “have a right and obligation to ensure that only moderate judges are appointed.”

“It’s not a frivolous thought”


Will He Stay?



William H. Rehnquist was tapped to be chief justice 19 years ago Friday, and while conventional wisdom says his combination of age and cancer won’t allow him to stay around for a 20th, some court watchers are not so sure.

They point out that he looks better than he had been, is keeping a regular schedule and, maybe most important of all, still loves his work. All that adds up to the possibility – still slim – that he’ll confound everyone and stay put, perhaps for another full term.

Boyle confirmed by judiciary committee, 10-8 party-line vote


No Threat to New Deal


That’s the conclusion of this Federalist Society White Paper. The bottom line: Adding another justice (or two or three) who agrees with either Justice Scalia or Justice Thomas won’t produce a roll-back of the New Deal.

Filibuster Strategy


With conservative ideology off the table as an extraordinary circumstance warranting judicial filibuster, Senate Democrats may be returning to the “Miguel Estrada strategy” of justifying filibuster with requests for more information, even when there is no specific issue they are probing and the information is confidential work product or protected by executive privilege.

Judge Boyle’s 14-Year Trek


District Judge Terrence Boyle’s 14-year trek to the Fourth Circuit is set for an important step tomorrow.

Boyle, who was first nominated by President George H.W. Bush in 1991, was renominated to the Fourth Circuit by President George W. Bush on May 9, 2001. He finally received his Senate Judiciary Committee hearing on March 3, 2005.

Tomorrow the Judiciary Committee is expected to debate and vote on his nomination, which (in the event of a favorable vote) would then be reported to the full Senate for action.

Re: Analyzing the Griffith Roll-Call Vote


Beldar suggests that genuine concern over Thomas Griffith’s failure to keep his law license active might explain the votes of “moderate” Democrats against his nomination. As for the liberal votes for him:

Their votes were cynically political, a recognition that the Griffith fight was a loser for their side; and as such, solely to reduce the public perception of monolithic Democratic opposition to Dubya’s judicial nominees, they threw their votes to the “aye” side without regard to Mr. Griffith’s individual merits and problems.
A partial alternative explanation for the bizarre vote pattern might be that the liberal Democrats who voted for Griffith may have come to know him and respect him during his time as Senate legal counsel (1995-1999), whereas the moderates (with the exception of Byrd, and possibly a short overlap for Bayh) arrived in the Senate after Griffith had left.

Ohio and Judges


One reader writes in to comment that Ohio voters hvae been fed up with activism by the judiciary for some time:

One thing missing from the discussion on Dewine is that Ohio voters in 2004 voted overwhelmingly against Judicial Activism. It looks like the anger lingers…

Here’s an abstract of an Editorial from the Columbus Dispatch on 11/5/2004
(the rest can be purchased here :)

“The voters’ choice on Tuesday of Chief Justice Thomas J. Moyer, Justice
Terrence O’Donnell and Judge Judith Ann Lanzinger for the Ohio Supreme Court was a sound rejection of the judicial activism that hurt this state for far too

The Sins of the Father


K-Lo’s early a.m. post on The Corner this morning about Pat Dewine losing his Republican primary in Ohio deserves further discussion. Dewine, a former frontrunner for the seat and son of Senator Mike Dewine, faded worse than Giacomo down the stretch at the Belmont, finishing fourth with 12% of the vote. There are often multiple factors at work here, but it is hard to believe that Senator Dewine’s opposition to filibuster reform, otherwise known as the McCain Mutiny, didn’t do his son in. Conservatives turned on a dime against Dewine and nominated Jean Schmidt for the heavily Republican District. Thanks Dad. Pappa Dewine can’t be feeling too comfortable about his reelection chances in 2006.

Analyzing the Griffith Roll Call Vote


In the 73-24 vote confirming Thomas Griffith’s nomination to the D.C. Circuit, 20 Democrats voted for confirmation and 24 voted against. (Of the Republicans, 53 voted aye, and two weren’t present, and independent Jeffords also didn’t vote.)

It should come as no surprise to learn that Bayh, Byrd, Johnson, Landrieu, and Salazar were on one side, and Biden, Dodd, Durbin, Levin, and Schumer on the other. But what was a surprise—to me, at least—is that the former set of five more moderate Democrats voted against Griffith’s nomination, and the latter set of five very liberal Democrats voted for the nomination.

What might explain this? One theory would be that even liberal Democrats are learning that their obstructionism is hurting them politically. But they also know that their activist groups will go bonkers if there are too many Democrat votes for certain nominees. So the party leadership, in order to enable liberals to gain some political cover with their constituents by voting for Griffith, pressures more moderate Democrats to vote against.

Perhaps someone closer to the Griffith battle would have some insights on this theory or would have an alternative explanation for the bizarre vote pattern.

Circuit Breakers


The Griffith confirmation continues the remaking of the D.C. Circuit, considered by many to be the most powerful appellate court short of the Supreme Court in the country. The court was more or less equally divided between Democrat and Republican appointees at the beginning of W’s first term. But given some major retirements and three Bush appointments, the makeup of the Court is now 7-4 in favor of Republican appointees. With the impending retirement of former Chief Judge Harry Edwards, a Carter appointee, and the pending nomination of Brett Kavanaugh, the balance could shift even more. Democrats on the Hill are obviously keenly aware of this shift, which is likely why, as Ed Whelan reported yesterday, Kavanaugh’s confirmation may be held up a while.



Thomas Griffith was just confirmed by the Senate (roll call should be up here in a few)


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