Bench Memos

NRO’s home for judicial news and analysis.

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.

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.


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