Bench Memos

NRO’s home for judicial news and analysis.

Batson Lives


A number of decisions from the Supremes today, including two reversing murder convictions under the Batson doctrine, which holds that peremptory challenges during jury selection may not be exercised in a racially discriminatory manner. In one, Johnson v. California, Justices Scalia and Thomas part company–Justice Thomas being the sole dissenter arguing the proposition that Batson left the states lots of flexibility as to compliance with its test for determining whether a Batson claim is valid. The other decision, Miller-El v. Dretke, reversed a capital murder conviction (Thomas and Scalia were together in dissent, along with Chief Justice Rehnquist). It is lengthy and requires more study before responsible comment.

RE: Kavanaugh’s Nomination on Indefinite Hold


Another very knowledgeable Senate staffer tells me that Harry Edwards will be taking senior status by the end of 2005 and that Kavanaugh’s nomination will be moved at that point. This same staffer tells me that four Republicans – Grassley, Hatch, Kyl, and Sessions – support the hold.


Kavanaugh’s Nomination on Indefinite Hold


Bad news for Brett Kavanaugh: Perhaps I’ve missed it in the papers, but I am reliably informed by a very knowledgeable Senate staffer that the Senate Judiciary Committee is holding Kavanaugh’s nomination until another vacancy develops on the D.C. Circuit.

I gather that this hold has something to do with the longstanding dispute over whether the D.C. Circuit needs 12 active judges. Janice Rogers Brown became the 10th active member of that court, and Tom Griffith is in line to become the 11th.

I haven’t heard which Republican senator (or, possibly, senators) on the Judiciary Committee is combining with Democrats to hold Kavanaugh’s nomination. I do have a guess in mind, and it’s not Chairman Specter.

I have no information on whether another vacancy is likely soon. Does anyone?

On Noxious Knuckleheads


It is, I suppose, an occupational risk of blogging that vandals in the blogosphere might distort one’s arguments and attack one’s integrity. This past weekend an anonymous blogger hiding behind the moniker “blue slip” mugged me. I don’t intend to make a practice of responding to noxious knuckleheads, but I’ll make an exception here.

After taking some potshots at Ramesh, Blue Slip attacks Bench Memos as “beyond dishonest”. As the sole support for his attack, he cites a recent post in which I stated that “no conceivable nominee will have the record of extremism that nominee Ginsburg had, but will instead surely display a much more sound understanding of the role of judging in a constitutional republic.”

There are a number of unintentionally amusing aspects to Blue Slip’s attack. For starters, Blue Slip writes for a blog “focused only on full disclosure,” yet his blog discloses neither his name nor anything else about him. Second, while his own credentials are a mystery, Blue Slip thinks it clever argumentation to assert that his points “may be above” me and are “probably all over [my] head.”

Third, Blue Slip makes no effort to understand my point. The hyperlink in my statement of course contained my supporting evidence, yet Blue Slip does not address, and evidently did not even read, that evidence.

The broader point that I have sought to establish through several posts is that, notwithstanding Ruth Bader Ginsburg’s reputation as a moderate, she had at the time of her nomination (and has manifested on the Court since her appointment) a record that is in many respects strikingly extremist. Yet she was promptly confirmed by the Senate, with overwhelming Republican support. That history therefore provides helpful context for assessing Senate Democrats’ treatment of President Bush’s judicial nominees.

I have never maintained that Ginsburg’s record was uniformly extremist. There are certain areas, like criminal law, where the political label of “moderate” or at least “moderate liberal” more or less fits. But these areas should not obscure her extremism on “culture war” issues nor her unconstrained view of the role of a judge.

Blue Slip’s basic argument is that Ginsburg is “conservative” compared to “true judicial liberals” like Justices Brennan and Marshall. The utter irrelevance of his argument can perhaps most readily be captured by an analogy: Let’s say that I stated that Illinois is closer to the Mississippi River than California is. Blue Slip’s rebuttal is that Hawaii is even farther away than California.

Blue Slip’s closing suggestion that my criticism of Ginsburg is somehow anti-Semitic would be laughable if it were not so contemptible.

Poor comprehension, laziness, arrogance, name-calling. Quite a combination. No wonder Blue Slip hides behind his anonymity.

One More Pryor Gush


And, Rick, he’s an model of how a religious person can live a principled public life–and be successful. This is from a Mobile Register piece on Friday:

“I can think of no greater honor or weightier responsibility for an American lawyer than to serve as a federal judge who is bound to support and defend the Constitution of our beloved nation,” Pryor said in the statement, released through his Birmingham office. “By God’s grace, I will continue to give this duty my best effort.”

Pryor shocked people with his honesty and refusal to back down, despite attacks (which Dems made about religion). The president stood behind him. And now, he’s been confirmed by the Senate. Sometimes the right thing does happen, because good men don’t give up.


Pryor’s Courage


I agree with my Bench Memos colleagues that the NYT profile of Judge Pryor Friday was a fair one. I think it is worth emphasizing, though, how wonderfully refreshing–and courageous–it was for Judge Pryor, when invited to distance himself from his previous characterization of Roe v. Wade as an “abomination,” refused: “No,” the judge replied evenly, “I stand by that comment.” He had to have known that, by adhering to his view, he risked losing the votes of more than a few Republican senators.

There is another aspect of Judge Pryor’s courage that goes unnoticed, even in the Times profile. The profiles notes that Judge Pryor is a Roman Catholic. (Of course, Pryor’s religion was made an issue, by both sides, during his confirmation fight, in regrettable fashion). The article does not mention, though–and I have not really heard others mention this–that for a Roman Catholic public figure in Alabama (the home, remember, of Hugo Black, who made his name defending a man charged with killing a Catholic priest) to stand up to Judge Moore’s antics and showboating with the Ten Commandments is also quite courageous. I have no doubt that, in some quarters, Pryor’s refusal to go along with Moore’s defiance triggered nasty, and even anti-Catholic, grumblings. Here, for example, is one blogospheric commentator and Moore partisan accusing Pryor of being a “secular humanist.” Here, another blogger laments Pryor’s “treachery” in the stand-off between the “Catholic” Pryor and the “Christian” Moore. And here, another enlightened “conservative” commentator calls Pryor a “turncoat Judas.”

Judge Pryor is, in my judgment, a credit to the law, and to the bench.

“his claim is not getting more persuasive with repetition”


Re: Lies, Damned Lies and Statistics


The always amusing Beldar understands Rosen/NYTimes arithmetic about as well as I do.

Novak on Nominations


Bob Novak’s Sunday column reports:

The next two Senate test votes on judicial confirmations are likely to be cast on White House aide Brett Kavanaugh and U.S. District Judge Terrence Boyle of North Carolina, both named to federal appellate courts. Kavanaugh and Boyle are not included in the bipartisan compromise on confirmation. If Democrats refuse to end debate on them, Senate Majority Leader Bill Frist is expected to invoke the “nuclear option” to confirm them by majority vote.

A footnote: Michigan Appeals Court Judge Henry Saad, one of two judicial nominees sacrificed in the compromise agreement, may not even have the 50 votes needed for majority approval, much less the 60 senators needed for cloture.

Cornyn, Kyl for SCOTUS


Lies, Damned Lies and Statistics


GWU Prof. Jeffrey Rosen’s article (“Center Court“) in the New York Times Magazine today on the filibuster deal and the future of the Supreme Court is a potpourri of just about everything that is wrong with how the Left looks at the judiciary these days.

The set-up is a study in the disingenuous use of statistics. Rosen notes that “68 percent of [Quinnipiac opinion poll] respondents said that Congress ‘does not have the same priorities for the country’ as they do[,]” while 44 percent “approved of the way the Supreme Court is handling its job” – a bloc that Rosen repeatedly calls a “plurality” so he can treat it throughout the rest of his article as if it were a decisive majority. Of course, it actually means a true majority (and, 56 percent, a solid one) did not indicate approval of the Supreme Court’s performance. Rosen blows past this inconvenient fact since it destroys his thesis that Americans are thrilled with the current level of judicial governance and don’t want those bad Republicans to muck things up with nuclear options or, heaven help us, conservative appointees.

Even assuming for argument’s sake, moreover, that these two metrics were enlightening in some sense, they are measuring two very different things. Asking whether someone has the same priorities as you do is vastly different from asking whether you approve of the job he is doing. The pope and I do not share the same priorities, but I think he is doing a good job. Joe Torre and Yankee fans share the same priorities, but Yankee fans probably think he is doing a lousy job right now. Nonetheless, Rosen misleadingly portrays the questions as if they measured the same thing (i.e., as if the same question had been asked about both Congress and the Court) and that the responses mean the Court is 12 percent more popular than Congress. Thus, even on its own terms, his statistics-based argument is invalid – and even if it had any validity he is spinning it ludicrously because the most we could properly deduce from it is that the Court is somewhat less unpopular than Congress, not that Americans are delighted with the Court.

More to the point, this particular reliance on poll numbers betrays how badly the Left misperceives the proper role of the Court. Congress is a political branch. Its performance, if it is performing well, should line up with the priorities of Americans because its job is to represent them – which means actuating their wishes or changing their wishes by persuasion if the members of Congress think the people are ill-informed on some issue or another. Further, because the U.S. has a vast, diverse population, it cannot be said to have a single, identifiable set of priorities – it instead has multiple, competing priorities. Viewed in that light, 32 percent priority-sharing may not be all that bad.

The Court, on the other hand, has a much different job. Its members are given life tenure precisely because interpreting the law is not a matter of thrusting a wet finger in the air to divine which way the popular winds are blowing. If a document like the Constitution or a statute says two plus two equals four, but the public (or, more likely, elite opinion) wants it to equal five, the Court’s job is not to shuck-and-jive to make five. It is to say: “The answer is four. If you want it to be five you need the people whose job that is – namely, the Congress which is supposed to be responsive to your desires – to change the document. Don’t ask us judges to pretend it says something it doesn’t.”

That, naturally, probably would not be a “popular” decision as such things are inanely measured. It would, however, be a correct decision. But it might even be popular, too, depending on how the poll question was asked.

That is, let’s say respondents were asked: “Did you approve of the Supreme Court’s recent decision that two plus two did not equal five?” A majority might well say no – some because they don’t have enough civics education to understand that the court’s function is not to figure out what’s popular and impose it; some, sadly, because they do have what passes for a modern civics education and think the court’s job is to “evolve” us no matter what the objective words of the law may say.

But let’s instead say respondents were asked: “Do you think the court’s job is to apply the law as it is written and leave it to the people, through their elected representatives, to make any necessary changes in the law?” I imagine a considerable majority – i.e., even more than a “plurality”! – would answer “yes.” And even if I’m wrong, that would not change the fact that the question properly frames the institutional roles of the judiciary and the legislature. Thus, the answers would tell us a lot more about the populace than about either congress or the court.

Planning the Senate Calendar


Here’s the timetable that the Senate adopted for action on Ruth Bader Ginsburg’s nomination in 1993:

Nomination June 22, 1993

Hearing July 20, 1993 (exactly four weeks from the date of nomination)

Confirmation (96-3) August 3, 1993 (exactly six weeks from the date of nomination)

In the event of a vacancy this summer, the Senate should confirm a Supreme Court nominee at least as rapidly. First, no conceivable nominee will have the record of extremism that nominee Ginsburg had, but will instead surely display a much more sound understanding of the role of judging in a constitutional republic. Second, Ginsburg was altering the previous balance of the Court by replacing Justice Byron White, an opponent of much of the Court’s liberal activism (including Roe). No matter which Justice were to step down, no nomination this summer would have a greater effect on the previous balance of the Court than Ginsburg’s did — and, of course, in several scenarios the likely effect would be minimal or nil. (I don’t think considerations of previous “balance” ought to play any role in the confirmation process, but, for those who do, that’s how they cut.)

And, of course, a rapid confirmation will enable Senate Democrats to get to all the other important work that they say they’re so eager to do (and that their judicial filibustering has been blocking).

RE: RE: Anti-Pryor Votes


Jonathan, thanks for clarifying. I would be pleased to reach agreement on the terms you propose. Thanks for your successful mediation.

Collins on Pryor


Here’s the Washington Post on Sen. Collins’ explanation for her vote against Pryor (as opposed to her votes for Owen and Brown):

Collins said in a statement that she was worried about Pryor’s temperament and “respect for the judicial system.” She noted that he once said of a Supreme Court death penalty ruling, “This issue should not be decided by nine octogenarian lawyers.”
Some have wondered whether Collins wasn’t really figuring that many Maine voters would welcome a vote against someone who was both a Southern white male and a devout Catholic. (The fact that Collins herself is Catholic would not weigh decisively against, and might even weigh in favor of, such a calculus.) So it’s good to hear a reason that doesn’t indulge racist, sexist, and religious prejudice.

But how good is Collins’ stated reason?

A proper respect for the judicial system must be reconciled with a proper respect for the power of American citizens to exercise their rights of self-governance. When judges overstep their bounds, political officials (Pryor was Alabama’s attorney general at the time of his comment) have an obligation to respond with vigor. Pryor himself acknowledged this his particular phrasing was “overheated political rhetoric,” but that is a far more minor offense than that of our many senators who celebrate or acquiesce in judicial power grabs.

Thomas the Orginalist for Chief!


Charles Krauthammer today:

I hope President Bush nominates Thomas to succeed Rehnquist as chief justice, not just because honoring an originalist would be an important counterweight to the irresistible modern impulse to legislate from the bench but, perhaps more importantly, to expose the idiocy of the attacks on Thomas that will inevitably be results-oriented: hostile toward women, opposed to gun-free schools . . . and pro-marijuana?



Readers notice that the online version of the Pryor profile in the NYT is sponsored by Kinsey on DVD.

RE: The Timpanist


Jon, maybe it’s selective memory on my part, but do you remember reading a graph like this in the New York Times prior to Pryor’s confirmation (emphasis mine)?

But Mr. Pryor was careful not to take his conservative activism too far. He was successful in overturning a federal order barring student-led prayer in Alabama’s public schools, yet rejected the argument of Mr. James, the former governor, that teacher-led prayer was acceptable because the Bill of Rights did not apply to the states.

Pryor Was a Timpanist


The NYT has a fair profile of Bill Pryor here.

RINO Watch


From today’s NYT:

Other lawmakers pointed to the fact that Judge Pryor lost the votes of three moderate Northeastern Republicans, Susan Collins and Olympia J. Snowe of Maine and Lincoln Chafee of Rhode Island, as a signal to President Bush that he should be careful in pushing conservative nominees not acceptable to all in the Senate majority.

Judge Cabranes


Rumor has it Second Circuit Judge Jose Cabranes was passed over for the Supreme Court because Hispanic groups did not think he was liberal enough. Justice Breyer got the nod instead. Now some folks would like to see President Bush nominate Judge Cabranes to the Supreme Court. Not likely. As one of his supporters laments: “He’s the kind of judge that Democrats wish Republicans would nominate and Republicans wish the Democrats would nominate–which probably means he won’t be nominated.”


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