Bench Memos

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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?

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.


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