Bench Memos

NRO’s home for judicial news and analysis.

Spare Me


Dick Durbin is going on the Senate floor right now about how Republicans are wrong to say that any questions about public issues (like one’s opposition to abortion that fits with his religious beliefs). Dems are asking legitimate questions, is his contention. Would those legitimate questions include those Russ Feingold asked about his family vacation plans?

Randy Barnett’s Article Today


Kudos to Randy Barnett for today’s NRO piece. However, two minor areas of disagreement. I don’t see liberal distress with Stevens’s position; I see the opposite. And I don’t see the cause of medical cannabis receiving any lift here. Indeed, perhaps Kennedy and others in the majority were motivated to reach a bad constitutional result because of their discomfort with the product, as illogical as that may be in this case. But this is a definite and significant setback. Nonetheless, Randy’s advocacy was outstanding.


Ginsburg vs. Mother’s Day: Easily Forgettable


One detail of Al Franken’s mistaken assertion that Ruth Bader Ginsburg never proposed the abolition of Mother’s Day merits further attention. After listening to an audiotape of Franken’s remarks on his Air America show, I am revising the unofficial transcript to make clear that Franken was quoting Brookings Institution scholar Thomas Mann in his grand conclusion:

I think it’s an urban myth from conservatives. We got this from Thomas E. Mann, a Brookings Institute Senior Fellow on Government Studies. . . . He told us, “I now have it on the highest and closest authority that Ruth Bader Ginsburg has never, in any setting, proposed doing anything with Mother’s Day.”
So who is this “highest and closest authority” that Franken and Mann rely on? The only plausible alternatives are Ginsburg herself or her husband (after consulting with Ginsburg). Either way, it seems clear that Franken was signaling to his Air America listeners (both of them) that Ginsburg herself was the ultimate source of his (mis)information.

Let’s assume that Franken was not deceiving his audience on this point. Let’s assume, in other words, that Ginsburg was his ultimate source. So what?

I don’t doubt that Ginsburg could honestly have believed that she never proposed to abolish Mother’s Day. Indeed, it is just this possibility that I find so disturbingly revealing.

If, after all, you have dedicated your career to the ideological fiction that men and women are, except for trivial differences in plumbing, absolutely identical (rather than, say, of equal dignity and wonderfully complementary in nature). . .

If you have such disdain for the Founders that you purge their words of imagined gender bias and entrench your own policy preferences into constitutional law in place of the real Constitution. . .

If you regard the traditions of the American people as benighted. . .

If you pretend that abortion and even the utter barbarity of partial-birth abortion are constitutional rights (see Stenberg v. Carhart) and that the Constitution requires that taxpayers fund them (see Ginsburg’s chapter on the 1976 Term of the Supreme Court in a book titled Constitutional Government in America). . .

If you believe that it is bigotry not to elevate homosexual relations to the status of traditional marriage (see Lawrence v. Texas). . .

If you think that the Constitution can plausibly be read to prohibit laws against polygamy and prostitution. . .

If you oppose the Boy Scouts and Girl Scouts for perpetuating stereotyped sex roles. . .

If you are so removed from reality that you see co-ed prisons as necessary “to prepare inmates for return to the community as persons equipped to benefit from and contribute to civil society”. . .

If you recommend that the age of consent for purposes of statutory rape should be reduced to twelve. . .

If you believe that it is your job as a justice to supplant the political process and dictate for all Americans which interests are part of some New Age “right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” (see Lawrence v. Texas). . .

And if you won’t abide by the same rules (see 5th paragraph here) that you so eagerly impose on everyday Americans. . .

Then it’s hardly surprising that your comparatively modest proposal of abolishing Mother’s Day wouldn’t be memorable to you.

But it is shameful that Democratic senators and the liberal media have the gall to portray Ginsburg as a “moderate” and as in the “mainstream” while they attack President Bush’s outstanding nominees whose records and values are, by any measure, far more in line with those of the American people.

Democrats Running Scared?


Twelve Democrats were among the 67 votes in support of cloture on Bill Pryor’s nomination to the 11th Circuit. These twelve included the seven Democratic signatories to the Gang of Fourteen’s anti-cloture reform agreement (Byrd, Inouye, Landrieu, Lieberman, Ben Nelson, Pryor, and Salazar). Of the five additional Democratic votes for cloture, four–Bingaman, Carper, Conrad, and Bill Nelson–are up for re-election in 2006, and the fifth, Tim Johnson of South Dakota, has a tenuous hold on his seat.

This would seem to provide an encouraging read on how the politics of judicial confirmation are playing out among American voters.

He Went to Catholic School


He was editor of his law school law review. He believes in truth and justice and the American way. He likes apple pie and…(I made the last one up, I have no idea if Judge Pryor likes apple pie…yet.)

I’m just picking on the Senate.

I’m listening to the Senate debate on Bill Pryor. Jeff Sessions (who’s great on this) is getting into substance now, but a) I don’t really get having these post-cloture debates. b) Hasn’t everyone said everything there is to say? I haven’t heard a new argument about Bill Pryor in years (well, ok, except for libs suggesting he’s just hiding his extremism when faced with the reality of his recess-appointment record on the bench).

Well, at least no one is crying..yet.

Of course, all of this is just to say: I really want to know what he thinks of dogs.


More Promising Judge News



As a bonus, the Senate will confirm on Thursday Michigan nominees David McKeague and Richard Griffin, nominated to the 6th Circuit in Cincinnati, said Majority Leader Bill Frist, R-Tennessee.

While those two weren’t part of the deal to avoid a fight over judicial filibusters, Democrats withdrew their objections to their confirmation during the back-and-forth negotiations.

Good Sign from Specter on Kavanaugh


Pittsburgh Post Gazette:

“I think it’s wishful thinking by the Democrats that he won’t move forward,” Tobias said. Senate Judiciary Chairman Arlen Specter, R-Pa., said of Kavanaugh in an interview yesterday, “I intend to push him.”

P.S. 2


The Brown vote and the Pryor cloture vote rolls can be viewed here.

P.S. on JRB Vote


Senator [Jeffords] did not vote.

67 Yays-32, Pryor Cloture Vote Done


We’re almost there…

DraftPrado Update


Orin Kerr did some digging into the folks behind It turns out I was right to be cynical, as these folks hardly have a “nonpartisan” track record, and explicitly endorse a “progressive” agenda. This isn’t about consensus. It’s about derailing a conservative president’s nomination of a conservative nominee.

The Dem Who Voted for JRB


was Ben Nelson

Justice Brown: “Dissenter from Liberal Orthodoxy”


Yes! It’s a great moment.

As James Taranto in Best of the Web Today aptly put it today, Justice Janice Rogers Brown, the daughter of Alabama sharecroppers just confirmed to the United States Court of Appeals for the D.C. Circuit, is “a black dissenter from liberal orthodoxy.”

Brown confirmed 56-43


Dems Admit Justice Brown is “Extraordinary”


In the final hour of Senate debate on Justice Janice Rogers Brown, Democrats trying to smear and discredit her proclaimed that she is “exceptional” (Senator Leahy) and that she is a “real doozie” (Senator Reid). Senator Reid clarified that “doozie” means “extraordinary.”

They got that right: The Senate has just held an up-or-down vote on an exceptional, extraordinary judge.

Ted Kennedy’s Asthma Numbers


See Adler and Hayward.

Lies, Lies & More Lies


Senators Harry Reid, Pat Leahy, and Ken Salazar have in the last hour been lying on the Senate floor about Justice Janice Rogers Brown.

Example: Senator Reid just repeated the left-wing lie that Justice Brown longs for a reassertion of the long-overruled Lochner v. New York decision. Lochner held that the “liberty” protected by the 14th Amendment prevented states from enacting labor laws to protect workers. In fact, Justice Brown criticized a FOOTNOTE in Justice Holmes’s dissent in Lochner in which Holmes asserted the Founders of our country did not embrace any particular economic theory. Justice Brown pointed out that the Founders and the Constitution embraced a Lockean view that private property must be protected. As the daughter of a sharecropper, that truth is particularly poignant.

With respect to Lochner itself, Justice Brown was asked in her Judiciary Committee confirmation hearing whether she agreed with the holding. She said, “No.”

Brown vs. Boxer


A reader suggests: “Given those election numbers, if Brown is not confirmed (unlikely at this point), how about Brown running against Boxer for Senate?”

Kennedy’s Chutzpah


Earlier today on the Senate floor, Sen. Ted Kennedy (D., Mass.) grumbled at length about the many other more important issues–factories downsizing, pension reform, the uninsured–that the Senate could be debating this week instead of judicial confirmations. The nerve! After all, if it weren’t for Kennedy, the Democrats might never have adopted the reckless judicial filibuster strategy in 2003. Responsibility for time consumed this week on what properly should have occurred years ago belongs to none more than Kennedy himself.

RE: So Funny


I say we put Chuckie to the test. The president should nominate Ramesh to a federal appellate court, and I’m sure Chuckie would support his confirmation. Right?


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