Bench Memos

NRO’s home for judicial news and analysis.

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.

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.


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