Bench Memos

NRO’s home for judicial news and analysis.

Rubber Stamps


This reminder just in from Senator Cornyn’s office:

Sen. Schumer just lamented the “rubber stamp” approach to the President’s judicial nominees. He brought out his chart showing the overwhelming support by Republicans on judicial nominees. He said that “what I’m concerned about is a leader-led rubber stamp.” This is a curious complaint from a Senator who never voted against a single Clinton nominee.

He’s not alone, neither did the other Democrat Senators regularly heard speaking out on this issue.

For example, Sens. Kennedy, Feinstein, Murray, Biden, Durbin, Leahy, Dorgan and Dodd never voted against any Carter, Clinton (or in Sen. Kennedy’s case, Johnson or Kennedy) judicial nominees.

Perhaps the “rubber stamp” attack isn’t the best choice.

As always, please don’t hesitate to contact me if I can provide anything further on this, or any other matter.

Bill Pryor--Memory Lane



Schumer Claims


that no conservatives are arguing with Ramesh and G. Will. Not so. Just look at that CONSERVATIVE NATIONAL REVIEW outfit. Here’s Peter Kirsanow on Brown. And on May 17, Ramesh and Peter debated JRB in The Corner.

Senator Cornyn on the Mainstream


Senator Cornyn of Texas, who has been a stalwart on judicial nominations, today issued this statement titled “Who’s in the ‘Mainstream’?”:

As the Senate continues its debate on the President’s judicial nominees, liberal interest groups claim that nominees must hold ‘mainstream,’ and not extreme, views. Yet they applied a very different standard to Democrat nominees, than they now apply to Owen, Brown and Pryor.

For example, prior to her service on the federal bench, Justice Ruth Bader Ginsburg–a distinguished jurist and liberal favorite–served as general counsel of the ACLU, a liberal organization that has championed the abolition of traditional marriage laws and attacked the Pledge of Allegiance. Before becoming a judge, Ginsburg expressed her belief that traditional marriage laws are unconstitutional, but that prostitution is a constitutional right. She also wrote that the Boy Scouts and Girl Scouts are discriminatory institutions, that courts must require the use of taxpayer funds to pay for abortions, and that the age of consent for sexual activity should be lowered to age 12.

Most Americans do not consider these views to be mainstream–yet Senate Republicans and Democrats alike set aside such concerns and approved her nomination to the Supreme Court by a 96-3 vote, less than two months after her nomination was announced. Yet President Bush’s nominees–who do hold views shared by millions of Americans and enjoy the support of a bipartisan majority of senators–suffer vicious attacks and unprecedented obstruction from liberal interest groups and their allies in Congress.

We should all reject this double standard. We should consider nominees on the basis of their qualifications and judicial temperament, not on the basis of some distorted conception of the political ‘mainstream.’ We should examine their commitment to applying the law regardless of their personal beliefs, not the actual content of those beliefs. And we should consider nominees based on the mainstream support of a bipartisan majority of the Senate, rather than the virulent opposition of a partisan minority of senators and extreme interest groups.

So Funny


Charlie Schumer just called Ramesh and George Will “thinking conservatives” because they’ve aired Janice Rogers Brown reservations. How often does Charlie Schumer consider them “thinking” players worth praise? (I’ve been complaining about this in The Corner too for the last little bit.)


Janice Rogers Brown


Confirmations Coming


Howard Bashman rounds up news on the coming confirmation votes here. To summarize: There will be a cloture vote on Judge William Pryor this afternoon after the confirmation vote on Justice Janice Rogers Brown. Pryor’s confirmation vote could come as early as tomorrow. There should be three more confirmation votes–on Griffin and McKeague as previously reported, and on Thomas Griffith for the D.C. Circuit–next week. Meanwhile, The Hill reports that Frist is in no rush to bring other, more controversial nominations (e.g. Haynes, Myers, Kavanaugh, Saad) to the floor as there are other matters (Bolton, energy bill, etc.) that the Senate must address.



Some outfit called “Start Change” is campaigning for President Bush to nominate judge Ed Prado for the Supreme Court. Would it be overly cynical to view this as an effort to encourage opposition to whomever the President nominates instead?

Ginsburg vs. Mother’s Day, Round Two


I plan to say more tomorrow on Al Franken’s “highest and closest authority” who misled him into thinking that Ruth Bader Ginsburg hadn’t proposed the abolition of Mother’s Day. But in case my previous post left the impression that Ginsburg’s opposition to Mother’s Day was a youthful indiscretion, let me make clear that Ginsburg has recently expressed support for a treaty that, under her views, would very likely make Mother’s Day illegal.

On April 1, 2005, Ginsburg gave a badly confused speech (which I critiqued in my essay “Alien Justice”) that sought to defend the Supreme Court’s increasing use of foreign law in support of its rulings on the meaning of the Constitution. In the course of that speech, Ginsburg referred to “the 1979 Convention on the Elimination of All Forms of Discrimination Against Women, which, sadly, the United States has not yet ratified.”

Set aside for now the inappropriateness of Ginsburg’s commenting on the live political issue of whether the United States should ratify a particular treaty. It should not be surprising that a justice who doesn’t respect the difference between judging and legislating when she is deciding cases wouldn’t understand that there are political issues on which she should refrain from commenting.

Under this 1979 Convention, known as CEDAW, a signatory nation is subject to periodic reviews by a CEDAW Committee, which assesses the nation’s progress in fulfilling CEDAW’s terms. In 2000, this Committee criticized Belarus for celebrating Mother’s Day:

The Committee is concerned by the continuing prevalence of sex-role stereotypes and by the reintroduction of such symbols as a Mothers’ Day and a Mothers’ Award, which it sees as encouraging women’s traditional roles. It is also concerned whether the introduction of human rights and gender education aimed at countering such stereotyping is being effectively implemented.
In short, the CEDAW Committee saw Mother’s Day as a violation of CEDAW.

If Ginsburg is going to look to the views of international bureaucrats to decide what the Constitution means, then it goes without saying that, if the United States were to ratify CEDAW, she would give even greater weight to the views of the CEDAW committee in determining the obligations of the United States under CEDAW.

Some entity called the United Nations Association of the United States of America disputes that CEDAW would abolish Mother’s Day. Amusingly, UNAUSA offers this defense of the CEDAW committee’s action: “The committee was disapproving only of Belarus’ particular version of Mothers’ Day which promoted stereotypical roles for women; it was not condemning the general practice of celebrating Mothers’ Day.”

It’s hard to credit UNAUSA’s defense since the CEDAW committee did not identify any particular features of Belarus’s Mother’s Day that it found objectionable. Instead, the CEDAW Committee objected to the fact that Mother’s Day “encourage[es] women’s traditional roles.” Thus, the CEDAW committee can be expected to approve a general practice of celebrating Mother’s Day only when lots of men are mothers.

Contra Boxer


Committee for Justice issued this rebuttal of Sen. Boxer’s anti-Brown speech yesterday.

PFAW Rebuttal


From NBC News’s First Read yesterday:

Top officials at the liberal People for the American Way met with reporters on Friday to publicize a new report of theirs entitled “Courting Disaster 2005,” which examines Scalia’s and Thomas’s dissenting and concurring opinions, and it concludes that the appointment of one or two new Justices who are similar to Scalia or Thomas could overturn important precedents regarding reproductive health, privacy, and civil rights. The study is a prelude to the group’s ramped-up efforts this month in anticipation of a Supreme Court fight.
To set the record straight, Committee for Justice re-releases its original rebuttal to PFAW’s scare mongering, here.

“Filibuster Ends, Apology to Follow “


From Best of the Web:

By a 65-32 vote, the Senate today ended the filibuster, begun in 2003, against the nomination of Justice Janice Rogers Brown of California’s Supreme Court to a seat on the U.S. Court of Appeals for the District of Columbia Circuit. A confirmation vote is expected tomorrow. Ten Democrats joined all 55 Republicans in voting for “cloture” (60 votes were needed): the seven compromisers plus Tom Carper of Delaware, Kent Conrad of North Dakota and Bill Nelson of Florida–all of whom are up for re-election next year.

Meanwhile, USA Today reports (penultimate item) that the Senate will pass a resolution next week in which it “belatedly apologizes for failing to pass anti-lynching legislation”:

“Doria Dee Johnson, an author and lecturer on lynchings, says she will be in the chamber next Monday when the Senate will take up a resolution expressing remorse for not stopping a crime that took the lives of at least 4,742 people, mostly blacks, from 1882 to 1968. . . .

“The Senate resolution, sponsored by Sens. Mary Landrieu, D-La., and George Allen, R-Va., notes that nearly 200 anti-lynching bills were introduced in the first half of the 20th century and that seven presidents petitioned Congress to end lynching. But Senate filibusters blocked anti-lynching legislation for decades, Johnson said. “

It’s a shame the apology didn’t come up a few weeks ago, when Democrats were still touting the filibuster as one of the glories of American government.

The Supremes


Mark Levin writing in his book, Men In Black, on Lopez and Morrison:
“These two baby steps for judicial responsibility, however, have not established precedents beyond their specific cases, nor have they overturned the other Supreme Court rulings that have given the federal government a degree of power the founders rejected.” (Chapter 9, Socialism from the Bench, p. 140.)

Ruth Bader Ginsburg’s Opposition to Mother’s Day


My recent posting on the extremist views of Ruth Bader Ginsburg at the time President Clinton nominated her to the Supreme Court included the fact that Ginsburg “had proposed abolishing Mother’s Day and Father’s Day and replacing them with a single androgynous Parent’s Day.”

Rush Limbaugh kindly read this and other parts of my posting on his nationwide radio show. Alan Skorski, who will be publishing a book this fall on Al Franken titled Pants on Fire, has sent me his transcript of a recent radio show in which Franken played this audio clip from Limbaugh and dismissed Limbaugh’s account as an “urban myth from conservatives”:

Limbaugh clip: “You know, Ruth Bader Ginsburg is more extreme than any of these nominees that Bush has brought up. I went through this list of things she actually believes in, that came out in her testimony, such as getting rid of Mother’s Day and Father’s Day and replacing it with Parent’s Day.”

Franken to Mark Luther: “She never actually said anything about Mother’s Day and Father’s Day for Parents’ Day anywhere.”

Mark Luther: “So you think he is just fabricating this completely?”

Franken: “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.”

Sorry, Al, but this is no urban myth. Here is exactly what Ginsburg proposed—in a section titled “Recommendations”:
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.
Source: Page 133 of “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.

If any other leftist wants to dispute any other aspect of my posting on Ginsburg, please do so publicly, and I will be happy to provide exact quotations and page citations.

It’s especially telling that even the Left finds it hard to believe how extremist many of Ginsburg’s views were. Yet notwithstanding views that were far more out of the “mainstream” than even the grossest caricatures of the most vilified of President Bush’s nominees, Ginsburg was confirmed to the Supreme Court, by a 96-3 vote, a mere six weeks after her nomination.

Justice Brown, “Activism, ” and Theft


Today’s anti-Brown editorial in the Washington Post complains about, among other things, her dissenting opinion in San Remo Hotel v. San Francisco. According to the Post, “[Justice Brown] began one dissent, in a case challenging regulation of a hotel, by noting that ‘private property, already an endangered species in California, is now entirely extinct in San Francisco.’ Her colleagues on the California Supreme Court certainly got what she was up to. In response, they quoted Justice Holmes’s Lochner dissent and noted that ‘nothing in the law of takings would justify an appointed judiciary in imposing [any] personal theory of political economy on the people of a democratic state.’”

To say that the San Remo Hotel case involved “regulation of a hotel” is like saying that Moby Dick involved a fish (or, I guess, a sea-dwelling mammal). In fact, as Peter Kirsanow explained a few weeks ago, the case “involved San Francisco’s hotel-conversion ordinance that requires owners of hotels that serve the poor, elderly, and disabled to pay a substantial fee to the city whenever the owners seek to convert their property to tourist use. The fee, amounting to 80 percent of the construction costs of the units to be converted, would be paid into the city’s Residential Hotel Preservation Fund for the poor.” (The fee, by the way, was more than a half-million dollars.)

Justice Brown’s dissent did not, in fact, attempt to “impos[e] [her] personal theory of political economy on the people of a democratic state.” Instead, her dissent was effort to remind her colleagues–and the Post, I suppose–that the Takings clause (which the Post puts in “scare quotes”) is as much a part of the Constitution as, say, the Free Speech Clause. Her goal was not the revival of “Lochnerism” but simply to prevent a striking, glaring effort to shift the entire cost of a social policy onto a few property owners who lacked the political power to protest. My point is not that Justice Brown was, in the end, correct in her interpretation and understanding of the Constitution. It is simply that there is nothing unworthy or “activist” or extreme about taking the Takings clause seriously. Here is the introduction to Brown’s San Remo dissent:

Americans are a diverse group of hard-working, confident, and creative people molded into a nation not by common ethnic identity, cultural legacy, or history; rather, Americans have been united by a dream–a dream of freedom, a vision of how free people might live. The dream has a history. The idea that property ownership is the essential prerequisite of liberty has long been “a fundamental tenet of Anglo American constitutional thought.” (Ely, The Guardian of Every Other Right (1998) p. 43.) “Indeed, the framers saw property ownership as a buffer protecting individuals from government coercion. Arbitrary redistribution of property destroyed liberty, and thus the framers hoped to restrain attacks on property rights.” (Ibid.) “Property must be secured, or liberty cannot exist” (Adams, A Balanced Government (1790) in Discourses on Davila (1805), reprinted in 6 Works of John Adams (1851 ed.) p. 280), because property and liberty are, upon examination, one and the same thing. Private property is in essence a cluster of rights inuring to the benefit of the owner, freely exchangeable in accordance with the terms of private agreements, and recognized and protected by common consent. In the case of real property, this cluster of rights includes the right to exclude persons from certain physical space. In the case of intellectual property, it may include the right to employ a valuable method or process to the exclusion of others. In other words, private property represents zones of individual sovereignty–regions of autonomy within which we make our own choices.

But private property, already an endangered species in California, is now entirely extinct in San Francisco. The City and County of San Francisco has implemented a neo-feudal regime where the nominal owner of property must use that property according to the preferences of the majorities that prevail in the political process–or, worse, the political powerbrokers who often control the government independently of majoritarian preferences. Thus, “the lamb [has been] committed to the custody of the wolf.” (6 The Works of John Adams, supra, at p. 280.) San Francisco has redefined the American dream. Where once government was closely constrained to increase the freedom of individuals, now property ownership is closely constrained to increase the power of government. Where once government was a necessary evil because it protected private property, now private property is a necessary evil because it funds government programs.

From the Senate


All Republicans voted for cloture, plus the following 10 Democrats:
Nelson (NE)
Nelson (FL)

A final, up-or-down vote will occur on the Brown nomination tomorrow at 5 pm, after which a cloture vote on the Pryor nomination will immediately occur. Once cloture on Pryor is achieved, up to 30 hours of debate time on the nomination may occur.

Four More Judges on the Bench


According to this AP report, the Senate could confirm up to four appellate judges – Brown, Pryor, Griffin and McKeague – in the next week or so. The article also notes that Reid hopes confirming these four judges will put the issue behind him. It also (mistakenly) claims that confirming these four would take care of “almost all of the judges involved in the centrist agreement that averted a showdown over judicial filibusters.” Well, not exactly. The agreement itself addressed nominees Myers and Saad, and the negotiations also concerned Brett Kavanaugh and William Haynes. And then there’s Thomas Griffith, and Susan Neilson . . .

Brown Vote Tomorrow


An up-or-down vote on the nomination of Justice Janice Rogers Brown to the U.S. Court of Appeals for the D.C. Circuit is scheduled for tomorrow at 5pm.



The Senate just voted to end debate on Brown.

The Liberal Plantation


Peter Kirsanow has previously noted that “[l]eft-leaning political cartoonists depict [Janice Rogers Brown] as an Aunt Jemima on steroids, complete with exaggerated physical features typically found only in the racist literature distributed by hate groups.” Schumer’s rhetoric (quoted by Kathryn) would seem to suggest that he views Brown as an “uppity black woman.” (The quote marks are to highlight the racist cliché, not to attribute those specific words to Schumer.) All of this is further evidence for the proposition, long advanced by the Wall Street Journal op-ed page, that liberals are very scared by blacks who have dared to escape from the comforts of the liberal plantation.


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