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John Roberts Does Not Belong To The Federalist Society: The Washington Post reports:
  Everyone knows that, like all good Republican lawyers, John G. Roberts Jr. is a member of the Federalist Society, the conservative law and public policy organization where right-of-center types meet to denounce liberalism and angle for jobs in the Bush administration.
  And practically everyone — CNN, the Los Angeles Times, Legal Times and, just yesterday, The Washington Post — has reported Roberts's membership as a fact. One liberal group opposed to Roberts's nomination, the Alliance for Justice, has noted it on its Web site.
  But they are wrong. John Roberts is not, in fact, a member of the Federalist Society, and he says he never has been.
  This part of the story is particularly funny:
  Upon reflection, some Federalist Society members conceded that they had never actually seen Roberts at meet-and-greets such as the society's annual black-tie dinner.
  "That's a good question, let me think. Now that you mention it — no," was former Bush Justice Department official Viet Dinh's response when asked if he had ever spotted Roberts at any Federalist events.
  Hat tip: ACSBlog.
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Is Roberts a Fellow Traveler?: The Washington Post has a front-page story today reporting that John Roberts was listed in a 1997 document as a member of the steering committee of the Washington DC lawyer's chapter of the Federalist Society. Being on the steering committee was apparently an honorary position and didn't require Federalist Society membership, but the revelation that Roberts may be a fellow traveler has some urging the Senate to get to the bottom of his connection with the Federalists. (If anyone in the Senate needs a script, I recommend that they try to avoid this one.)

  UDPATE: I have reworked the last sentence to minimize the risk that a reader would assume I am equating this issue with the McCarthy hearings, which at least one commenter seemed to believe.
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Have You Ever Been a Member of the Federalist Society?

I don't think the Senate Judiciary Committee will have to go so far back to find a script for questioning Judge Roberts about his alleged connection to the Federalist Society. This is one issue they're quite good at investigting already. For instance, when Judge Edith Brown Clement was nominated to the U.S. Court of Appeals for the Fifth Circuit, Senator Leahy asked her the following questions (submitted in writing):

  • Describe the Federalist Society's Advisory Council and your role as a member of it.

  • Describe the Federalist Society activities (including activities of the Advisory Council) in which you have participated as a federal judge.

  • Describe the Federalist Society activities (including activities of the Advisory Council) in which you have participated as a federal judge.

  • Describe the ways in which your membership in the Federalist Society and/or its Advisory Council has influenced your decisions as a judge.

  • Are there any cases or categories of cases in which your membership in the Federalist Society would cause you to recuse yourself?

  • What does it mean to be a member of the Federalist Society as a judge?

  • Do you share a judicial philosophy with the Federalist Society?

  • With what (if any) Federalist Society positions do you disagree?

  • Describe the Federalist Society activities in which you participated as an attorney.

  • Did you consider resigning from the Federalist Society when you became a judge? If not, why not?

And who can forget Senator Dick Durbin's grilling of Viet Dinh over whether he was a member of the Federalist Society and was familiar with the phrase "the Constitution in Exile." Don't worry, Orin, they'll get to the bottom of this.

UPDATE: Let me add a clarification of my own. I am more bemused than alarmed by the line of questioning above — as I am by all the speculation about whether Judge Roberts was ever a Federalist Society member. As Marx observed (and I paraphrase): history repeats itself — first as tragedy, then as farce.

UPDATE: The Federalist Society is not the only group to receive this treatment of late. In March 1998, Senator Leahy noted that Clinton judicial nominee Susan Graber had been grilled about her connection to the ACLU:

At her confirmation hearing, she was interrogated about two briefs that she had filed a number of years ago, in 1982 and 1984, in connection with cases being pursued by the ACLU. She was asked whether she is now or ever has been a member of the ACLU. She was asked whether she personally agreed with a number of positions taken recently by the ACLU. I objected to this line of questioning at the hearing and caution the Senate that we are headed down a road toward an ideological litmus test that does not well serve the Senate, the courts or the American people.

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Roberts and the Federalist Society:

The media's new obsession over whether John Roberts is or was a member of the Federalist Society is pretty foolish. I know members whose political views range from moderate conservatives (more moderate than, say, O'Connor or Kennedy) to Christian rightists to libertarian anarchist individualists. Judicial philosophy ranges from Borkean anti-judicial review views to Randy Barnettian presumptions of liberty. In short, membership in the Federalist Society tells you nothing about a nominee except that he or she is not "on the left", which one presumes would be true about any Bush Supreme Court nominee.

Mauro on Roberts: In today's Legal Times, Tony Mauro takes a very interesting look at how John Roberts might influence the other Justices if he is confirmed by the Senate.
Eugene on the Federalist Society:

Pejman Yousefzadeh recalls this Washington Post op-ed on the Federalist Society -- what it is and isn't -- by our own Eugene Volokh.

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Does Rhode Island State Judge Stephen Fortunato

not know the Supreme Court's Fourth Amendment jurisprudence, or does he just not care? Or does he just think that lower court judges should ignore Supreme Court precedents?

Justice Fortunato wrote an article criticizing Judge Roberts' decision upholding the D.C. government's policy of arresting children for eating on the subway. Here's the criticism:

As statutes and constitutions are often marked by a lack of specificity, and thus allow for divergent interpretations by different judges, it is instructive to examine how Judge Roberts analyzed the Fourth Amendment declaration that people have a right "to be secure in their persons" and to be free from "unreasonable searches and seizures" when he was confronted with the claim of 12-year-old Ansche Hedgepeth that she had been unlawfully arrested and detained by undercover police officers in October of 2000.

Her crime? Eating food, specifically one French fry, at a Washington, D.C., subway stop, in contravention of a local ordinance.

For her gustatorial effrontery, police officers took her into custody, handcuffed her behind her back, searched her body and her backpack, removed her shoelaces, and then transported her in a windowless van to a facility for processing and fingerprinting. Throughout this ordeal, the child was sobbing. She was released to her distraught mother three hours later.

When Ansche's mother brought suit, the question presented to Judge Roberts and his colleagues on the U.S. Court of Appeals for the District of Columbia Circuit — which legal commentators maintain is the second most powerful court in the country — was whether Ansche's right to be free from unreasonable searches and seizures had been violated.

Judge Roberts noted the right and responsibility of courts to "inquire into the reasonableness of the manner in which an arrest is conducted," before he went on to rule that the police officers had done nothing unconstitutional in dragooning little Ansche.

We may fairly ask what Judge Roberts thought was reasonable about the scope and nature of the search and temporary incarceration of this child? Did he think that the girl was concealing contraband ketchup? Or an unpatriotic bottle of French wine to quaff with her fried spud? Perhaps there was something about her and her overt display of a French fry that led the officers to conclude that she had a hand grenade in her knapsack.

This outrageous decision is instructive. First, it teaches that a Harvard law degree and a professional lifetime representing corporate clients and the U.S. government are no guarantee that one comprehends the Bill of Rights. . . .

The view that it's generally unreasonable to arrest people for very minor criminal offenses — eating food in the subway, driving without a seat belt, and the like — is perfectly plausible. But it was squarely rejected by the Supreme Court in Atwater v. City of Lago Vista three years before Judge Roberts' decision (as Judge Roberts' opinion expressly discussed). Likewise, one could argue that it was unreasonable for the police to search the backpack, or Ansche Hedgepeth's person — but the Supreme Court has consistently held that the police have the right to search people and their nearby belongings incident to an arrest.

Hedgepeth did argue that Atwater was distinguishable, but I think Judge Roberts was quite right in explaining why her arguments were unpersuasive; the Court's ruling in Atwater did quite clearly control this case. And in any event, Justice Fortunato's op-ed never mentioned Atwater, or explained why Justice Fortunato thought the case didn't control. It left readers with the false impression that Judge Roberts was deciding the matter based on his own views of the Fourth Amendment, with no acknowledgment that he might have felt bound by the Supreme Court's decision.

It seems to me there's nothing outrageous about a lower court judge following the Supreme Court's precedents in this context. But there is something quite troubling about a state judge's publicly criticizing a person, while not revealing to his readers that person's s strongest — and quite likely dispositive — defense.

Thanks to How Appealing for the pointer to Justice Fortunato's op-ed.

UPDATE: I originally mischaracterized Justice Fortunato as a justice of the state Supreme Court; he's a judge on the state Superior Court -- i.e., the trial-level court -- though the honorific that such judges are given in Rhode Island is "Justice." Many thanks to Charles Lovell for the correction. The substance of my criticism remains entirely unaffected.

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More Unsound Criticism of Judge Roberts:

This is from a column by lawprof Goodwin Liu:

What we already know from Roberts's record is cause for concern. His legal career is studded with activities unfriendly to civil rights, abortion rights, and the environment.

Last year, for example, he wrote an opinion rejecting the civil rights claims of 12-year-old Ansche Hedgepeth, who was arrested, searched, handcuffed, booked, and detained by police for eating a single french fry in a subway station in violation of D.C. law. Although an adult committing the same infraction would have received only a citation under D.C. law, Roberts said the police's treatment of Hedgepeth served the "goal of promoting parental awareness and involvement with children who commit delinquent acts."

What, though, was the precise "civil rights claim[]" that Judge Roberts was responding to here? It was Hedgepeth's argument that the government policy unconstitutionally discriminated based on age. But of course the Supreme Court has generally held that age discrimination is constitutional if it's rationally related to any legitimate government interest -- the most deferential of the equal protection tests. Here's Judge Roberts' argument in context (some paragraph breaks added):

Rational basis review applies and we accord the challenged policies a strong presumption of validity. We will uphold them "if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." FCC v. Beach Communications, 508 U.S. 307, 313, 113 S.Ct. 2096, 2100-01, 124 L.Ed.2d 211 (1993). What is more, "those attacking the rationality of the legislative classification have the burden 'to negative every conceivable basis which might support it.'" [Id.]

We therefore need not review all the reasons given by the defendants in support of the challenged distinction between children and adults; it is enough that we find one reason rational. We conclude that the no-citation policy for minors is rationally related to the legitimate goal of promoting parental awareness and involvement with children who commit delinquent acts.

Issuing a citation to a child is complicated by the fact that there is often no ready way to ensure that the child is providing truthful or accurate identifying information. A child often will not be carrying a form of identification, and there is nothing to stop one from giving an officer a false name -- an entirely fanciful one or, better yet, the name of the miscreant who pushed them on the playground that morning. In this situation parents would be none the wiser concerning the behavior of their children.

The correction of straying youth is an undisputed state interest and one different from enforcing the law against adults. Because parents and guardians play an essential role in that rehabilitative process, it is reasonable for the District to seek to ensure their participation, and the method chosen -- detention until the parent is notified and retrieves the child -- certainly does that, in a way issuing a citation might not.

The district court had and we too may have thoughts on the wisdom of this policy choice -- it is far from clear that the gains in certainty of notification are worth the youthful trauma and tears -- but it is not our place to second-guess such legislative judgments.

Given the Supreme Court's rulings that age is not a "suspect" or "quasi-suspect" classification, and therefore age classifications are permissible whenever they're rationally related to a legitimate government interest, it seems to me that Judge Roberts' decision was perfectly sound -- and that a contrary decision on the equal protection issue would have been inconsistent with the Supreme Court caselaw that Judge Roberts was required to follow. (As to why Judge Roberts' decision was also correct, and mandated by the Supreme Court precedents, as to the Fourth Amendment, see this post below).

Thanks to commentator "french fry fan" for the pointer to the Liu column.

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Miranda Warning: In the free section of today's OpinionJournal.com, Manny Miranda takes the Bush staffers to task for their shoddy handling of the "Federalist Society´issue."
Judge Roberts's ties with the Federalist Society are not the story. If Judge Roberts is not a member, he's not a member. But the White House should not be in the business of appearing to disassociate itself from its friends. By running to correct media reports last week that Judge Roberts was a member of the Federalist Society, the White House created an issue where none existed. It should have left it to the press or Democrats to unveil this great mystery. . . .

Why should the White House have stayed silent? Several reasons. As we should know by now, the left loves to come up with conspiracy theories; responding to them only encourages this kind of scare-mongering. Also, by responding to the reports, the White House legitimized an attack on good people who may include future judicial nominees, including the president's next Supreme Court pick.
In addition, it harms a GOP-friendly society of lawyers that depends on membership dues for support. Students and lawyers with visions of future confirmation hearings dancing in their heads may now think twice before joining the Federalist Society. (I am sending in my application and dues today and I urge others to do the same.)

But there is an even better reason for why the White House should have stayed quiet: loyalty. . . .
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Questioning Roberts on Overturning Roe:

The question that seems least answerable to me by Roberts in a confirmation hearing is the one in which most people are concerned--whether he would overrule Roe v. Wade. Not because of the issue of whether Roe was rightly or wrong decided in the first place, but rather because there is a separate and independent question of parsing the Supreme Court's confused and confusing stare decisis jurisprudence (although, having read the cases, I'm not sure that the Supreme Court actually has any sort of coherent "jurisprudence" of stare decisis in terms of predicting when it will actually overrule precedent).

What does seem clear about the Supreme Court's stare decisis framework is that it is actually a fact-intensive inquiry that depends very much on the factual record in a given case. Mind you, this is not the typical factual record, but it seems that it would require the Court to consider sociological, scientific, political, and medical data in determining whether to overrule Roe. This question about whether to overrule Roe is much more difficult to answer in the abstract or hypothetical than the question of whether Roe was correctly decided in the first instance.

A good example of the difficulties of the stare decisis inquiry is provided by Judge Edith Jones's concurring opinion in McCorvey v. Hill, 385 F.3d 846 (5th Cir. 2004). Published news reports generally suggested that Jones's opinion was critical of Roe as a matter of first impression (such as this one from the Washington Post which says, ambiguously, that she "called into question the reasoning behind the Roe v. Wade abortion ruling").

In reality, Jones's opinion is about stare decisis regarding Roe and Casey, not Roe itself. The point of her concurrence is to note the anomaly of the way in which the mootness doctrine operates to prevent the Court's from being able to create a factual record on the types of facts that are necessary to apply the Supreme Court's stare decisis jurisprudence. In fact, the case there was dismissed because it was moot, thereby prohibiting courts from considering the type of evidence that they are required to consider under the Supreme Court's jurisprudence. She writes:

I agree that Ms. McCorvey's Rule 60(b) case is now moot. A judicial decision in her favor cannot turn back Texas's legislative clock to reinstate the laws, no longer effective, that formerly criminalized abortion.

It is ironic that the doctrine of mootness bars further litigation of this case. Mootness confines the judicial branch to its appropriate constitutional role of deciding actual, live cases or controversies. Yet this case was born in an exception to mootness and brought forth, instead of a confined decision, an "exercise of raw judicial power." Roe v. Bolton, 410 U.S. 179, 222, 93 S.Ct. 762, 763, 35 L.Ed.2d 147 (1973) (White, J., dissenting). Even more ironic is that although mootness dictates that Ms. McCorvey has no "live" legal controversy, the serious and substantial evidence she offered could have generated an important debate over factual premises that underlay Roe.

She notes that the decision for the Supreme Court to reconsider precedent under its own precedent is highly fact-instensive and requires the development of a substantial factual record on a wide-ranging inquiry*:

McCorvey presented evidence that goes to the heart of the balance Roe struck between the choice of a mother and the life of her unborn child. First, there are about a thousand affidavits of women who have had abortions and claim to have suffered long-term emotional damage and impaired relationships from their decision. Studies by scientists, offered by McCorvey, suggest that women may be affected emotionally and physically for years afterward and may be more prone to engage in high-risk, self-destructive conduct as a result of having had abortions. Second, Roe's assumption that the decision to abort a baby will be made in close consultation with a woman's private physician is called into question by affidavits from workers at abortion clinics, where most abortions are now performed. According to the affidavits, women are often herded through their procedures with little or no medical or emotional counseling. Third, McCorvey contends that the sociological landscape surrounding unwed motherhood has changed dramatically since Roe was decided. No longer does the unwed mother face social ostracism, and government programs offer medical care, social services, and even, through "Baby Moses" laws in over three-quarters of the states, the option of leaving a newborn directly in the care of the state until it can be adopted. Finally, neonatal and medical science, summarized by McCorvey, now graphically portrays, as science was unable to do 31 years ago, how a baby develops sensitivity to external stimuli and to pain much earlier than was then believed.

In sum, if courts were to delve into the facts underlying Roe's balancing scheme with present-day knowledge, they might conclude that the woman's "choice" is far more risky and less beneficial, and the child's sentience far more advanced, than the Roe Court knew.

Notably, Jones does not prejudge the likely outcome of this inquiry:

This is not to say whether McCorvey would prevail on the merits of persuading the Supreme Court to reconsider the facts that motivated its decision in Roe. But the problem inherent in the Court's decision to constitutionalize abortion policy is that, unless it creates another exception to the mootness doctrine, the Court will never be able to examine its factual assumptions on a record made in court. Legislatures will not pass laws that challenge the trimester ruling adopted in Roe (and retooled as the "undue burden" test in Casey; see Casey, 505 U.S. at 872-78, 112 S.Ct. at 2817- 21).

No "live" controversy will arise concerning this framework. Consequently, I cannot conceive of any judicial forum in which McCorvey's evidence could be aired.

The problem she was addressing, therefore, was the fact-instensive question of whether the Supreme Court should overrule Roe, not whether Roe was correct in the first instance. To the extent that the Supreme Court has given us guidance in this area (such as its discussion of overruline Lochner versus upholding Roe), it seems to turn on precisely these sorts of broad questions that are simply impossible to answer in a hypothetical without a full factual record.

As Jones further notes, however, this is precisely the sort of factual inquiry that seems to be foreclosed by the interaction of Roe with the mootness doctrine, unless the Court makes an ad hoc exception to mootness. So, even if the Judiciary Committee wants to ask him about overturning Roe, I don't see how he can reasonably answer in the absence of a richer factual record.

In general, the news coverage I saw during the period when Jones was thought to be under consideration fundamentally failed to grasp this distinction between what she actually said in the opinion about precedent versus what people thought she said about Roe v. Wade.

The key point here, though, is that there is a big difference between whether to uphold precedent, versus deciding whether a case was correctly decided in the first place. The former seems to be exactly the sort of question that can't be answered in the abstract. Given that, I don't see how Judge Roberts could meaningfully answer that particular question based on the lack of a solid factual record.

Also, I think its kind of funny to think about the Court's "precedent precedent" (i.e., when to overturn a given case)--sort of a "metaprecedent" I guess.

I express no opinion on what other questions are in-bounds or Roberts should be expected to answer. For instance, I'll confess that I haven't made up my mind on Vik Amar's argument that even if Roberts can't be asked about future cases, he could be asked to comment on how he would have decided cases that have already been decided. It is an interesting argument that I have to think about more.

Professor Andrew Samwick seems to think Amar's proposal is ok and gives his answers if he were in the hotseat here.

*I added some paragraph breaks in some of the block quotes for readability here; I have not altered the text.

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Will the lobbies oppose Roberts?--

At our host, Law.com, is by far the best thing I've read on the difficult decision of the left-wing lobbyists over whether to oppose the Roberts nomination. Not only is the implicit analysis in T.R. Goldman's Legal Times article good, but the quotes are revealing:

Some suggest the groups would be better off waiting for another target, perhaps a more abrasive and controversial candidate when the next Court vacancy materializes. Demonizing someone like Roberts, they say, may simply serve to diminish their influence.

"To fly into hysteria over a nominee who is not Judge Bork, if you react at the same decibel level to every putative nominee, it becomes difficult to be heard when necessary," says a staffer at a liberal, Democratic-leaning public policy organization.

So far, however, it seems as if the liberal lobby is determined to hold its ground.

"We're swinging hard right out of the gate," says Ben Brandzel, advocacy director for MoveOn.org, the Web-based advocacy group that claims a membership of 3.5 million. "Our credibility is not about getting the Senate to do our bidding. Our credibility comes from fighting for things our people believe in," adds Brandzel, who says Roberts has spent a lifetime "putting corporate power and abuse and partisan politics over the rights of individuals."

Abortion rights groups, including NARAL, NOW and the Feminist Majority, have likewise come out quickly and forcefully against the Roberts nomination, pointing critically to at least two cases Roberts worked on as deputy solicitor general: one which parenthetically stated that the administration opposed Roe v. Wade, the other which took the side of an anti-abortion group, Operation Rescue, in Bray v. Alexandria.

"This is incredibly important. It's life or death," says the Feminist Majority's Eleanor Smeal. "I wish it was hyperbole, but, literally, women's lives are in the balance."

But whether Smeal and others' opposition brings down Roberts' bid makes little difference to them, says University of Connecticut professor David Yalof. Instead, he says, it's about a broader strategy.

"What the liberal interest groups are thinking about is the 2006 and 2008 elections. The traction that these groups hope to gain against Republicans is not possible unless they frame the nomination to their benefit, as an attack on their values. That's what's going on now," he wrote in an e-mail interview.

"Beating Roberts would be nice, but it's not necessary for these groups to stay relevant to the process." . . .

Liberal-leaning interest groups' track record and reputation hit a high point last year, when they played a key role in Senate Democrats' successful filibuster of 10 Bush White House court of appeals nominees, including Miguel Estrada, who eventually withdrew his name from consideration for a coveted D.C. Circuit seat. . . .

The groups were arming for war long before a vacancy on the Court occurred, much less before a nominee was announced.

When speculation was rampant about the expected resignation of Chief Justice William Rehnquist, PFAW made no secret about its efforts to develop a massive, quick-response team devoted to the next nomination, a plan that included a 2,500-square-foot war room with 40 computers and 75 phone banks. . . .

In the end, interest groups maintain they are relevant as long as their members believe them to be. And in that regard, to them, a loss isn't always a loss.

"In the interest group world, a spectacular loss can actually help you," [Richard] Skinner says. "On the one hand, it means you're visible. On the other, if you keep losing, there's a threat, there's a reason to be concerned. People generally give money when they think there's a danger."

Or, as the Alliance for Justice's [Nan] Aron puts it: "Why are people paying dues? Because they know we're out there fighting the good fight along with them."

This is excellent reporting and sophisticated issue-framing. As they say, read the whole thing.

UPDATE: My view is that the release of the Reagan-era internal memos gives the Roberts opposition enough ammunition to mount a set of attack ads that would be superficially effective enough so they will not lose much face by opposing him -- if they choose to go that route. Remember also that there is competition among lobbyists. Which of the two leading left-wing judicial appointment watchdog operations will gain credibility with the potential base opposing Bush's judicial nominees: the Alliance for Justice or the People for the American Way? Or will a new player, MoveOn.org, steal their thunder by beating them to punch, as may already be happening? These organizations face credibility issues -- not just with Senators, the press, and the informed public -- but with more ideologically motivated donors and joiners as well.

As for the Senate committee hearings, it is too early to tell, but the Senators' more cautious attack on Roberts is so far shaping up to be three-fold: (1) attack the refusal to release additional internal Roberts memos from later presidential administrations (as they did with Estrada), (2) attack Roberts' refusal to answer most questions about past Supreme Court cases, and (3) assert that (or at least question whether) Roberts is "outside the mainstream" or "outside the conservative mainstream" on important issues.

Privilege Claim and Roberts Memos:

An L.A. Times article says:

The White House is citing the attorney-client privilege as the basis for refusing to reveal memos written by Supreme Court nominee John G. Roberts Jr. when he was representing the government before the high court. At the time, Roberts was the top deputy to Solicitor Gen. Kenneth W. Starr.

But it is not clear that this legal privilege shields the work of government lawyers from the eyes of government investigators — thanks to a legal ruling won by Starr himself, when he was independent counsel investigating President Clinton.

Usually, the attorney-client privilege protects private lawyers from being forced to reveal what their clients told them. It also shields their notes and memos from prosecutors. This rule of secrecy is seen as vital to the adversarial process.

But in 1996, Starr challenged the notion that White House lawyers who worked for Clinton could invoke the attorney-client privilege when Starr sought notes they had written.

Starr argued that the lawyers worked for the people of the United States, not for the president.

Democrats are making a similar argument in Roberts' case: that the solicitor general represents the public interest.

The dispute was one of many legal tussles during Starr's six-year investigation of the Whitewater matter. It resulted in a broad appeals court ruling that held that government lawyers did not have the same right to keep secrets as private attorneys did.

"We believe the strong public interest in honest government and in exposing wrongdoing by public officials would be ill-served by recognition of a governmental attorney-client privilege" when prosecutors or congressional investigators are seeking information, the U.S. Court of Appeals in St. Louis said. "Even if we consider a congressional investigation to be an adversarial proceeding, the only harm that could come to the White House as a result of such an investigation is a political harm." . . .

Two questions for our readers:

1. Is the White House really claiming an attorney-client privilege, in the sense of saying that it has a legal right to withhold the documents? I had thought that it was simply saying that such documents shouldn't be turned over, since turning them over would deter some future government employees from giving the most candid possible advice. That's an argument that applies to nonlawyer employees as well as lawyer employees; to the extent it's translated into a legal entitlement, it would sound more like executive privilege than attorney-client privilege; but in any event, it's not an assertion of a legal right to refuse to disclose information (in part because no such assertion of legal right is necessary, at least yet, since there's no actual subpoena from a Senate committee demanding those documents).

But perhaps I'm mistaken — perhaps the White House has indeed said the documents are legally privileged, under the attorney-client privilege. I've seen some press accounts characterizing the White House's actions this way, but I wonder if there are any quotes from White House statements that make this clear.

[UPDATE: Commenter Bryan DB kindly pointed me to the Transcript of the Jul2 6 White House press briefing, which says in part, "MR. McCLELLAN: Well, I'm talking about that this is attorney-client privilege, and it relates to the deliberative process." So the White House is indeed claiming that the documents are covered by the attorney-client privilege; many thanks for the information!]

2. As I read the Eighth Circuit case that the article cites, the court held only that there's no government attorney-client privilege in criminal cases, where information is demanded by the grand jury. The court's reasoning focused heavily on criminal investigations, and it said that it "need not and do[es] not decide" what should happen in civil cases; this suggests that it also didn't decide what should happen in other noncriminal investigations, such as a Congressional investigation that wasn't focused on criminal conduct.

The language that the article quotes about congressional investigations focuses (as best I can tell) on a very different subject: whether the work product privilege (a different privilege) applies under conditions when the work product is generated in anticipation of a congressional investigation.

So while the logic of the opinion might possibly be extended to Congressional subpoenas, even ones that are unrelated to investigation of criminal wrongdoing, it seems to me that the court's holding doesn't really apply here. There was "a broad appeals court ruling that held that government lawyers did not have the same right to keep secrets as private attorneys did," but it was not broad enough to hold anything about rights to keep secrets vis-a-vis Congressional inquiries. Can readers who are familiar with this area of the law, or who have read the Eighth Circuit case, tell me whether I'm mistaken?

I should note that none of this relates to whether it's good policy or good politics for the government to refuse to disclose those memos; I'm speaking here just about (1) whether the White House has stressed a legal attorney-client privilege, as opposed to the executive privilege or policy concerns making the release of the memos improper, and (2) whether the Eighth Circuit decision (or other decisions) really apply to Congressional investigations.

I'd love to hear people's responses in the comments. Thanks to reader Scott Weber for the pointer to the L.A. Times article.

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Stuart Taylor On Querying Roberts: Stuart Taylor offers a typically thoughtful discussion of the pros and cons of requiring Supreme Court nominees to disclose how they would expect to vote in particular cases if confirmed to the Supreme Court. Taylor gets to the issue that I think is the real question: how requiring a nominee to answer at the hearing stage would impact the White House's selection process.
  As of now, the president and his people avoid asking potential nominees detailed questions not only because of ethical scruples but also because they know that senators would demand full disclosure of all questions and answers; would denounce the White House for exacting and the nominee for providing "litmus-test" answers; and would properly expect similarly detailed answers to their own questions.
  The converse is also true. To the extent that senators succeed in forcing nominees to detail their views publicly, the White House will feel freer to grill potential nominees secretly. Does the president want a nominee who has implicitly committed to vote in certain ways on abortion, gay rights, religion, and — most important of all — the president's own claims of virtually unlimited war powers? He could direct his staff to grill would-be nominees until the staffers get the right answers.
  Of course, in order to win confirmation, the nominee would have to give very different sworn testimony to the Senate. So presumably, the White House would not keep transcripts. But once on the Court, those who had successfully slimed their way through this gantlet would know that their sponsors and friends in the White House were watching.
  Would such new justices adhere to their secret commitments, or to their public ones? Would they welsh? Do we want honest, independent jurists? Or do we want political hacks?
  I'm not sure of where I come out ultimately on the normative question of how much nominees should be required to disclose. But I think Taylor may be on to something. As an abstract question, it seems to me that disclosure of a nominee's tentative thinking on a question is mostly a good thing, all other things being equal. The tougher question is the presumptive need for information symmetry at the selecton and hearing stage. As Taylor points out, if detailed questioning at the latter stage is okay, then detailed questioning at the former stage presumably is okay, too. Given that, I'm not sure if a regime of more detailed questioning at the hearing stage would have the effect that its proponents think. VC readers, what are your thoughts?

  Hat tip: Howard.
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John Roberts Internal Memo on the Role of the Courts and DOJ: The National Archives has put up a page with a bunch of the more interesting internal DOJ memos John Roberts wrote as a young lawyer, and Chris Geidner has found one memo in particular that paints a fascinating picture of how Roberts views judicial decisionmaking and government institutions (or at least how he did when he was a young lawyer).

  The background of the 2/16/82 memo is that Roberts' boss, Attorney General William French Smith, was scheduled to give a speech to conservative groups. Roberts was tasked with coming up with ideas for how to respond to criticisms from conservatives that the Reagan DOJ was not conservative enough. The National Review and the Heritage Foundation had been criticizing DOJ for not not taking consistently conservative views in cases, and for helping to select Sandra Day O'Connor as a Supreme Court nominee. Roberts wrote a memo on possible responses to this criticism; in the course of the memo, he offers some interesting suggestions about the role of the Supreme Court and government more generally:
  A related criticism [conservatives have made about the Reagan DOJ] focuses on the screening and appointment of federal judges, highlighted by the O'Connor debate. The assertion is that appointees are not ideologically committed to the President's policies, again with particular emphasis on the social agenda.
  Here again I do not think we should respond with a "yes they are"; rather we should shift the debate and briefly touch on our judicial restraint themes (for which this audience should give us some credit). It really should not matter what the personal ideology of our appointees may be, so long as they recognize that their ideology should have no role in the decisional process — i.e., so long as they believe in judicial restraint. This theme has to be glossed somewhat, because of the platform, but we can make the point that much criticism of our appointees has been misdirected. Judges do not implement policy in the true conservative view of things, and the hot issues of today will not be those of ten or fifteen years hence, when our judges will be confronted with new social issues. Our appointments process therefore looks beyond a laundry list of personal views to ascertain if the candidate has a proper appreciation of the judicial role.
  We have been criticized [by conservative groups] for not following Reagan policy in the Grove City, North Haven, and ERA cases. Perhaps without naming specific cases, we can make the point that we must defend acts of Congress in the courts (ERA) and must enforce the laws as written, not rewriting them to comport with policy desires (Grove City, North Haven). This is the role of the Department in the constitutional system, and our conservativism believes in that system. Any other approach would be trying to use the courts to set policy, having policy set by the Executive rather than Congress (cf. Bob Jones), or inviting Congress or other intervenors to present the position of the United States in court.
  (emphasis in original)

  It's hard to read too much into this one memo, but to me it's consistent with the idea that Roberts is less a committed political conservative than a committed judicial conservative of the Harlan/Frankfurter school. If his views today are the same as they were in 1982, Roberts' conservatism is a conservatism that "believes in the system" of institutions, not one that pushes the law to reach conservative results. That's the sense I get from the memo, at least.
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Roberts and his Pro Bono Work on Romer.--

I find the discussion of John Roberts' pro bono work on Romer interesting because it shows one or both of two things: either Roberts favors sexual liberty or he really does approach legal issues as a lawyer, able even to offer his very valuable time without pay to helping a client take a position at odds with conservative political views.

People should not discount Roberts' ability to decline to work on a hot-button case, if he were too careerist to take on a controversial case or so morally opposed to gay rights that he did not want to lend his help.

I did a bit of pro bono work for the National Organization for Women (NOW) on a big abortion clinic bombing case that went before the US Supreme Court twice (reading briefs, suggesting strategies, some limited research, mooting an argument). Before one of the Supreme Court arguments, I set up a small mooting session at Northwestern. We got a panel together, but both of the conservatives (former Supreme Court clerks) whom I asked to moot declined. I didn't ask them why, but either morality or potential careerist reasons were likely.

So I wouldn't discount the importance of Roberts' mooting and advising on Romer v. Evans, though I have no idea whether it means that he is inclined toward recognizing sexual liberty in the Constitution or whether it means that he approaches even hot-button political issues according to the role he should play in the legal scheme.

Either way, the more I read about Roberts the better I like him.

This is another example that very well educated conservatives rarely fit the public stereotypes assigned to them. While very high educations tend to make liberals more consistently liberal, very high educations tend to make conservatives less consistently conservative (and thus less extreme) on social issues. For this reason, those presidential nominees targeted as "outside the mainstream" are very probably not extreme at all. While they would be likely to be conservative on some issues, on some other issues they would be likely to take the liberal side of things.

This is a bit like highly educated bloggers: while supposedly "conservative" bloggers might support Bush's court nomineees and the War on Terror, such "conservatives" often take the liberal side on some issues, such as perhaps abortion rights, gay rights, assisted suicide, and stem-cell research, and they might also believe in evolution, oppose mandatory school prayer, or favor the right to burn flags. Such a diversity of views among the highly educated left is much more rare.

UPDATE: More on this at the New York Times, Althouse, William Woody, and A Knight's Blog.

Ken Karst on Judge Roberts:

My colleague Ken Karst -- one of the nation's foremost constitutional scholars, a solid liberal, and as it happens my free speech law teacher -- e-mailed this to some colleagues; I asked him whether I could blog it, and he graciously agreed:

From: Karst, Kenneth
Sent: Friday, August 05, 2005 8:57 AM
To: . . .
Subject: FW: Judge Roberts

In case anyone cares, here's a note I sent in response to a query from a member of the ABA's committee on the federal judiciary. Think of this as a one-time mini-blog.

Ken

-----Original Message-----
From: Karst, Kenneth
Sent: Friday, August 05, 2005 8:37 AM
To: . . .
Subject: Judge Roberts

Dear Mr. Marshall,

Thanks for your letter asking for my views on the nomination of Judge Roberts to the Supreme Court. Alas, I have nothing useful to say about his history. I don't know Judge Roberts, nor have I seen him in action as an attorney or a judge. All I know about him, I have read in the press.

However, ignorance rarely prevents one from having a view, and I do have one. I am one of those liberal law academics whom Justice Scalia sometimes blames for the Supreme Court's straying from the True Path. Even so, I believe the Senate should confirm Judge Roberts's nomination. By all accounts, he is a first-rate lawyer, who listens carefully to arguments, even when they go against his initial inclinations. He seems to me to be a true conservative, who sees the judicial role as one in which courts conserve. I don't expect to agree with all his decisions, even on matters of intense controversy. I should compare him to the second Justice Harlan--with whom I often disagreed, but whom I still consider an excellent Justice.

Even though I have nothing to offer except opinion, I am grateful that you had me on your list, and I wish you and your ABA colleagues well in your deliberations.

Sincerely,

Ken Karst

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Push Polling Against John Roberts?: A well-placed and reliable source (a.k.a. my mom) has informed me that efforts to oppose the John Roberts nomination apparently include "push polling." What is push polling, you ask? The National Council on Public Polls explains:
  A "Push Poll" is a telemarketing technique in which telephone calls are used to canvass vast numbers of potential voters, feeding them false and damaging "information" about a candidate under the guise of taking a poll to see how this "information" effects voter preferences. In fact, the intent is to "push" the voters away from one candidate and toward the opposing candidate. This is clearly political telemarketing, using innuendo and, in many cases, clearly false information to influence voters; there is no intent to conduct research. fake polling calls designed to use the perceived legitimacy of polling questions as a way of creating an impression about an event or person.
  My well-placed and reliable source received a call today from someone claiming to be a pollster from the apparently nonexistent "LST Research Center" who was conducting an opinion poll. The poll consisted of two questions. The first question was whether she was pro-life or pro-choice. When my well-placed and reliable source answered that she was pro-choice, the caller then asked for her views on the President's decision to nominate someone who wanted the Supreme Court to overrule Roe v. Wade. My well-placed and reliable source then began arguing with the caller about the inaccuracy of the factual premise; the caller said that she was just reading from a script, didn't really know the details, and then hung up.

  Has anyone else received similar calls? It would be interesting to know how widespread this practice is, and who is paying for it. Of course, if news reports are accurate, it's not exactly something that Karl Rove has standing to object to (see here and here). Still, it's an unfortunate development.
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In 1983, Roberts questioned life tenure for judges.--

In a 1983 memo, John Roberts raised questions about life tenure for federal judges:

Two decades ago, however, he reasoned that long-entrenched judges could fall out of step with the society they serve. Limiting terms of federal judges would ensure a fresh supply of talent while guarding against "ivory tower" elitism, he wrote.

The Constitution "adopted life tenure at a time when people simply did not live as long as they do now," Roberts wrote in an Oct. 3, 1983, memo to White House Counsel Fred Fielding that is now on file at the Ronald Reagan Presidential Library.

"A judge insulated from the normal currents of life for 25 or 30 years was a rarity then but is becoming commonplace today," Roberts wrote. "Setting a term of, say, 15 years would ensure that federal judges would not lose all touch with reality through decades of ivory tower existence."

Roberts, then 28, offered his views while analyzing a Senate resolution that called for limiting members of the federal bench to 10-year terms, after which they could be reappointed.

The Reagan administration opposed the proposal, arguing in part that lifetime tenure protected judicial independence. Though Roberts did not formally object to that position, he saw merit in set terms. He accepted an open-ended federal appeals court seat in 2003.

Ending lifetime tenure would "provide a more regular and greater degree of turnover among the judges," Roberts wrote 20 years earlier. "There is much to be said for changing life tenure to a term of years, without the possibility of reappointment."

In the same memo, Roberts railed against what he described as an overreaching federal judiciary. He suggested that lifetime tenure was defensible only if judges stuck to interpreting — rather than making — law. It was a frequent complaint through his writings of the time.

"It is certainly appropriate to protect judges from popular pressure if their task is limited to discerning and applying the intent of the framers or legislators," he wrote. "The federal judiciary today benefits from an insulation from political pressure even as it usurps the roles of the political branches."

As I said earlier today, the more I read about Roberts, the better I like him.

NARAL Advertisement: Via How Appealing, I just watched NARAL Pro-Choice America's new advertisement opposing the Roberts nomination. If I'm not mistaken, it seems to be suggesting that John Roberts favors blowing up abortion clinics.

  Over at Bench Memos, Edward Whelan offers some context. You can hear John Roberts arguing the case that forms the basis of the NARAL advertisement from this site, starting at 16:10.
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John Roberts, Collegiality, and the Romer v. Evans Moot Court:

Romer, recall, is the case in which Judge Roberts -- then a partner in Hogan & Hartson -- helped out the gay rights side by participating in a moot court for their Supreme Court argument, apparently because a partner at his firm was involved in the case and wanted Roberts' help. People wonder whether you can tell much from this incident about what Roberts thinks about the underlying issue. I think the answer is "no," and here's a quote that I think helpfully explains why:

"John was building an appellate practice at our firm. And he wanted to be able to have the freedom to bring cases into the firm that were of interest to him. John therefore was open to being helpful to other partners and their clients. Pretty standard for a big law firm practice."

-- Mr. David Leitch, Former Partner with John Roberts at Hogan & Hartson (1987-1990, 1993-2001).

Seems to me that this is precisely how lawyers at big firms -- especially lawyers with Roberts' reputation for affability and collegiality -- operate. I got the quote from a Republican source, but I have no reason to doubt the quote's genuineness.

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FactCheck.Org Comes to John Roberts' Defense,

and criticizes the NARAL ad:

An abortion-rights group is running an attack ad accusing Supreme Court nominee John Roberts of filing legal papers “supporting . . . a convicted clinic bomber” and of having an ideology that “leads him to excuse violence against other Americans” It shows images of a bombed clinic in Birmingham, Alabama. . . .

In words and images, the ad conveys the idea that Roberts took a legal position excusing bombing of abortion clinics, which is false. . . .

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The United States' Position in Bray v. Alexandria Women's Health Clinic:

Recall that this is the case in which abortion clinics and abortion rights organizations sought an injunction against anti-abortion trespassers. The federal government filed a friend of the court brief arguing that the federal civil rights statute didn't apply to this behavior, and that the behavior was properly punished by state criminal law and tort law. (For more on the legal issue, read the Court's opinion.) John Roberts cosigned the brief, and delivered the government's oral argument.

I thought I'd add one detail, though, that people haven't noted: Not only was the government's position -- the one that Roberts is faulted for arguing -- accepted by six of the nine Justices, those six included two Justices who voted in favor of recognizing abortion rights in Casey v. Planned Parenthood. Justice Kennedy signed on to the majority opinion in its entirety. Justice Souter agreed with the majority on the issue that had been briefed by the government, but dissented in part because he thought another issue -- which the government's brief and oral argument, as best I can tell, had never addressed -- might be a winner for the plaintiffs. (The majority thought this separate issue hadn't even been presented below; Justice Souter argued that it had been adequately raised; but the government apparently didn't think it was in play, and therefore didn't address it.)

Whether this particular federal statute, as interpreted by the Supreme Court over many decades, should be read as barring illegal private interference with abortion rights, is a contested question -- the Court did split 6-3 on it (Justices Blackmun, Stevens, and O'Connor were in the dissent, Rehnquist, White, Scalia, Kennedy, Souter, and Thomas in the majority). But, as others have pointed out, one can certainly oppose criminal trespass and obstruction of entrances and yet think that this is a matter for state law, not federal law as written in the 1870s and interpreted by the Court since. And it's quite clear that this is an eminently mainstream position, taken by centrists and liberals Justices (e.g., Justices White and Souter) as well as conservatives, and by pro-abortion-rights people (e.g., Justices Kennedy and Souter) as well as by people who believe the Constitution does not secure abortion rights.

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David Kravitz (BlueMassGroup) --

who, as I've mentioned before, is a Blue Massachusetts liberal -- condemns what he calls "NARAL's anti-Roberts smear."

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Specter Complains to NARAL About the Roberts Ad:

His letter is here.

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NARAL Pulls Anti-Roberts Ad,

the AP reports.

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Many John Roberts-Related Documents --

his memos, decisions, oral argument transcripts, questionnaire responses, and more -- are linked to from this Washington Post page.

Were the votes of Justices Ginsburg and Breyer in NOW v. Scheidler

"in effect backing the terrorists against their victims"? Four of the smartest bloggers out there — Megan McArdle, Mark Kleiman, Kevin Drum, and Eugene Volokh — are discusing the merits of the NARAL ad.

Kleiman writes:

But one of the defendants in the earlier case [Bray] was in fact a previously convicted clinic-bomber, and the amicus was filed in support of Operation Rescue, hardly a peaceful protest movement. (Three years after the brief was filed, a civil jury in Chicago found that Operation Rescue was a racketeering enterprise, in a case that is once again making its way up to the Supreme Court.)

Eugene Volokh points out that the Court, by 6-3, upheld the position in the brief, and argues that therefore the brief can't be said to have been outside the mainstream of legal thinking. Fair enough.

But that brief had political as well as legal meanings. Operation Rescue was then engaged in a violent, and largely successful, attempt to deny access to abortion to as many women as possible by closing down the clinics. . . .

If the Bush I Administration had in fact opposed anti-abortion violence and merely doubted that the anti-Klan law could properly be made to apply, it could have offered legislation making interference with the clinics a federal matter; such legislation was in fact passed under the Clinton Administration. But of course the administration did no such thing.

By arguing that the most successful terrorist campaign waged in this country since the days of the Klan was a matter for state and local jurisdiction (an echo, of course, of the argument offered against federal anti-lynching legislation in the 1930s and 1940s), Roberts and the rest of the Bush I crew was in effect backing the terrorists against their victims. That's not "excusing" violence, but it's not exactly opposing, either.

The obvious irony here has not been noted. Kleiman points to NOW v. Scheidler, a case that I did some pro bono work on a few years ago for NOW. It involved the use of violence (including allegedly bombing) to block clinics, women, and doctors from doing or having abortions. Although NOW won its first round in the US Supreme Court, it lost its second round (2003), and a third round is now pending.

If I read the commentators correctly, unlike the Bray case for which Roberts was attacked, NOW v. Scheidler explicitly involved violence and bombing, which Kleiman correctly terms terrorism. Nor were the justices in the Scheidler case acting as lawyers for their client (as Roberts was); they were acting as judges interpreting federal statutes in light of the Constitution.

In the 2003 Scheidler case (8-1 against NOW), how did the two Clinton appointees vote? Both Justice Ginsburg and Justice Breyer voted against NOW and in favor of those who were found by a jury to have been responsible for violence. If one were to use Mark Kleiman's inflamatory characterization to describe their actions, both Ginsburg and Breyer were "in effect backing the terrorists against their victims."

If you read Justice Ginsburg's concurrence in Scheidler (joined by Justice Breyer), you see much the same sort of argument about RICO and the Hobbs Act that Roberts made in Bray about the scope of the Civil Rights Act. Here is the entirety of Justice Ginsburg's 2003 concurrence in NOW v. Scheidler:

I join the Court's opinion, persuaded that the Seventh Circuit's decision accords undue breadth to the Racketeer Influenced and Corrupt Organizations Act (RICO or Act). As Justice Stevens recognizes, "Congress has enacted specific legislation responsive to the concerns that gave rise to these cases." Post, at 6 (dissenting opinion). In the Freedom of Access to Clinic Entrances Act of 1994, 18 U. S. C. §248, Congress crafted a statutory response that homes in on the problem of criminal activity at health care facilities. See ante, at 9-10, and n. 9 (noting petitioners' acknowledgment that at least some of the protesters' conduct was criminal, and observing that "[t]he crime of coercion [a separate, and lesser offense than extortion] more accurately describes the nature of petitioners' actions"). Thus, the principal effect of a decision against petitioners here would have been on other cases pursued under RICO.**

RICO, which empowers both prosecutors and private enforcers, imposes severe criminal penalties and hefty civil liability on those engaged in conduct within the Act's compass. See, e.g., §1963(a) (up to 20 years' imprisonment and wide-ranging forfeiture for a single criminal violation); §1964(a) (broad civil injunctive relief); §1964(c) (treble damages and attorneys' fees for private plaintiffs). It has already "evolv[ed] into something quite different from the original conception of its enactors," Sedima, S. P. R. L. v. Imrex Co., 473 U. S. 479, 500 (1985), warranting "concern[s] over the consequences of an unbridled reading of the statute," id., at 481. The Court is rightly reluctant, as I see it, to extend RICO's domain further by endorsing the expansive definition of "extortion" adopted by the Seventh Circuit.

The lone dissenter was Justice Stevens. And, no, I don't think that the 8-1 Supreme Court was right on this one for reasons too technical to explain here.

The problem with an ad like NARAL's goes much deeper than any factual twisting. Many lawyers and judges really do believe that their political preferences are foreclosed by statutes or by the Constitution — perhaps not all the time, but often. My own speculation is that Ginsburg and Breyer were motivated both by a respect for law in this case and by a desire to discourage RICO suits against other legitimate protests. Also, one might argue that the very success of NOW's lawsuit in the 1990s had significantly decreased clinic bombings and violence, ironically reducing the need for a big damage judgment to stop the terrorism that had been occurring years before.

Let me brutally clear: I think it would be offensive to tie Ginsburg and Breyer to abortion clinic bombers based on their votes and opinion in Scheidler, just as I think it is offensive to tie Roberts to abortion clinic bombers based on the government's brief in Bray (especially since Roberts was acting for a client and Bray was not as clearly limited to violence as Scheidler is).

UPDATE: In brief, to explain my legal view of the 2003 opinions in NOW v. Scheidler: Even if the Court was right that the scope of Hobbs Act extortion is limited to obtaining money or ordinary property (the Court's holding here is certainly defensible), the Court completely botched a crucial issue that it barely mentioned. The Hobbs Act was not the only basis of NOW's suit; the RICO claims were also based on the Travel Act, which had been held by the Court to invoke state law definitions of blackmail and extortion, whatever they are called by the various states. These state extortion statutes punish compelling action as well as obtaining property. Accordingly (contrary to my memory of the NOW v. Scheidler majority's holding), federal RICO extortion should not be limited to obtaining property, even though the federal Hobbs Act may be.

2d UPDATE: Mark Kleiman responds thoughtfully here.