Bench Memos

NRO’s home for judicial news and analysis.

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.”

RE: Anti-Pryor Votes


Ed, I think you and my correspondent may actually agree. Yes, Judge Pryor understands that the Constitution doesn’t speak to abortion one way or the other, and recognizes the irrelevance of his personal views to the practice of judging. The point is that many of those who voted against him do not. Because they believe that judges will, and perhaps even should, decide cases in accordance with their personal political views, they are uncomfortable with nominees who express pro-life views in strong terms.

There Was Champagne


Re: Anti-Pryor Votes


Jonathan’s correspondent is overlooking a critical point. No matter how much Pryor deplores abortion, his view that the Constitution does not speak — one way or the other — to the matter means that (if he were free to disregard Supreme Court precedent) his views would have the same weight as any other voter’s. He understands, in other words, what it means to be a citizen in a constitutional republic. Those who would maintain Roe don’t.

“Profile of Potential Supreme Court Nominee - Senator John Cornyn”


Breaking Out the Champagne on 1600 Penn Ave.



I am pleased that the Senate voted today to confirm three distinguished and highly qualified judges to the United States Court of Appeals: Judge Bill Pryor, Judge Richard Griffin, and Judge David McKeague.

More than a year ago, I recess appointed Judge Pryor to the United States Court of Appeals for the Eleventh Circuit to fill a vacancy that had been designated a judicial emergency by the Judicial Conference of the United States. Judge Pryor’s recent service on the Eleventh Circuit has built on an impressive career of public service in which he has applied the law fairly and impartially to all people. I commend the Senate for fulfilling its constitutional responsibility to vote on Judge Pryor and for confirming him so that he will continue his service on this court.

Both Judge Griffin and Judge McKeague have served on the Michigan courts for more than a decade, during which time each has demonstrated a strong commitment to the rule of law. Both are well qualified to serve on the United States Court of Appeals for the Sixth Circuit and will fill vacancies that have been designated judicial emergencies by the Judicial Conference of the United States.

These three nominees have waited a combined total of over eight years for their votes. I applaud the Senate for today giving these fine nominees the up-or-down votes they deserve.

Pryor Hearing


Hey, Adler, wanna watch the hearing? He would not give them an inch and they hated it.

I have it on DVD. All the cool kids do. Southern Comfort for all.

(P.S. I was joking. Not about his performance, however.)

Two More


The Senate voted unanimously to confirm Griffin and McKeague to the Sixth Circuit.

Re: Anti-Pryor Votes


My correspondent defends his position:

I don’t disagree with Ed Whelan lightly, but I’m sticking to my guns. Pryor did more than simply call Roe/Casey a legal travesty (though Ed is right that overruling those decisions would not render abortion unlawful, but simply would return the issue to the democratic arena where it could be resolved on a state-by-state basis, or perhaps by Congress). Pryor also lamented the consequences of Roe/Casey – viz., millions of slaughtered unborn children. I think that’s almost an exact quote. So Pryor was not simply deploring the Supreme Court’s abortion jurisprudence an arrogation of a power that properly belongs to legislatures. He was signaling his views on the underlying policy question. That’s the sense in which Pryor’s nomination can be said to have implicated the core issue of the lawfulness of abortion.
I would add that if one watches the original Judiciary Committee hearing at which Pryor testified, it was clear many Senators were aghast not so much at his views on Roe, as with his unwillingness to disavow his prior characterizations of the result.



Frist just said on the floor that:
“I ask that at 2:30 p.m. Monday, June 13, the Senate proceed to the Griffith Nomination as provided under the order. Provided further that following the use or yielding back of time, the Senate resume legislative session and the vote occur on the confirmation of the nomination at 10:00 a.m. on Tuesday, June 14.”

The chair said: “without objection.”


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