Bench Memos

NRO’s home for judicial news and analysis.

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?

Ginsburg vs. Mother’s Day, the TKO


Attention, Al Franken:

I am pleased to report that I have posted on the website of the Ethics and Public Policy Center a PDF version of the source setting forth the extremist views of Ruth Bader Ginsburg, the “Report of Columbia Law School Equal Rights Advocacy Project: The Legal Status of Women under Federal Law,” co-authored by Ruth Bader Ginsburg and Brenda Feigen Fasteau in September 1974.

I have separately posted PDF versions of certain specific pages as well as the report’s cover page. Links to all of these pages and to the entire report can be found here. (Warning: Downloading the entire document will take a long time.)

The document includes the following propositions:

“Prostitution, as a consensual act between adults, is arguably within the zone of privacy protected by recent constitutional decisions.” [72]

A statutory restriction on political rights of bigamists “is of questionable constitutionality since it appears to encroach impermissibly upon private relationships.” [190-191]

“Sex-segregated adult or juvenile institutions are obviously separate and in a variety of ways, unequal. . . . If the grand design of such institutions is to prepare inmates for return to the community as persons equipped to benefit from and contribute to civil society, then perpetuation of single-sex institutions should be rejected.” [75]

“The Boy Scouts and the Girl Scouts, while ostensibly providing ’separate but equal’ benefits to both sexes, perpetuate stereotyped sex roles to the extent that they carry out congressionally-mandated purposes.” [131]

“Replacing ‘Mother’s Day’ and ‘Father’s Day’ with a ‘Parents’ Day’ should be considered, as an observance more consistent with a policy of minimizing traditional sex-based differences in parental roles.” [133]

Other nuggets abound. For example, Ginsburg recommended that the age of consent for purposes of statutory rape be lowered from 16 to 12. [See pages 69-71 and the specific recommendation regarding 18 U.S.C. § 2032 on page 76.]

Senator Boxer, BTW


got 57.8 percent of the vote in her most recent election.

California Girls


From from the Cornyn rapid-response office:

In an apparent attempt to diminish the overwhelming electoral support in California for Janice Rogers Brown, Sen. Boxer just claimed on the Senate floor that “anyone who knows anything about California politics knows that it is very rare that judges are made into an election issue. We usually approve our judges.” But perhaps the most memorable case of voter repudiation of activist judges happened in California: In November 1986 Chief Justice Rose Bird and two other liberal members of the California Supreme Court were voted out of office in large part for their activism in reversing death penalty cases.

Further, it is important to note that Justice Brown, with 76 percent of the vote, received the highest vote percentage of all justices on the ballot the year of her retention election.


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