From: ea To. Brett M. Kauneen MO EOPGEOP WHO | iTim GocgeinWwHO /EOP@EOP [ WHO ] Elizabeth Reid I Anne Keron Boyden Gray eee sent era Subject: Conference Callé Meeting Attachments: PLZBRTG0OS, WHO TAT 1.0 riginal ARMS Header ##HHHe SIDENTIAL (NOTES NAT CREATOR: Joe! fa 8:46.00 | 0 Brett I |. Kavanaugh/OU=W#0/0 READ: UNKNOWN To:Tim Goeglein [ CN=Tim Goeglein/OU=WHO/O=EOP@EOP [ WHO J READ: UNKNOWN ( Blizabeth ne isn TE ( opeicioi ee 3 a :UNKNH TO: Ne es ec TT UNION | D: UNKNOWN nd Original ARMS Header #AMHAe pacar 1:30 PM ET. The Gia) in sinber lt be (IMM ®= 2 for" ene Suticsal Unbrelia call. I'll send around Meee fen about this early next wee ‘The meeting on the 16th i faker & Hostetler {same place as Boyden, Brett and Tim will meet & some ideas. I'll also send out an email about this me: a go. ng the Leonard, Jay, Ge minutes prior to the meetin jek. Than you Yah online calendar with syne to Outlook (TM! = attl.htm TT CREATION TIME/D ile attachment anne womack/wholeop@eop | WHO ] ;heather wingate/who!eop@eop [ WHO | brett m. kavanaugh’wholeop@eop [ WHO ] ;bradford a. berenson/who/eop@eop [ WHO ] Sent: 4/3/2002 6:54:40 AM Subject: RE: From this week's Texas Lawyer Header ##HH## (NOTES MAT N=Tim Goeglein/Ov=WH0/O=B0P [ WHO} ) DATE/TIME: 21154340. RE: From this week's Texas Lawyer a eno dinh, viet" “dinh, viet" , Tim Goeglein/WHO/EO EOP ce: Brett M. Ka¥apaQgh/iHO/EOPGEOP, Bradford A. Berenson/tHO/EOPGEOP Subject: RB. Rromithis week's Texas Lawyer - mention owen, these have manpower to put in 2 places - nic and owen, it's too big of a fight not to be out front on. eiginal Message Dinh, Viet [mailto:Viet.Dinh@usdoj .gov Wednesday, April 03, 2002 9:42 AM To: 'Tim Goeglein@who.eop-gov' (Receip Requested) ( Return Requested); "Womack@oa-eop.gov' (Receipt Notification Requested) ; ‘Heather Wingatetwho.eop.gov' (Receipt Notification Reques (2 I (222 ipt oti fication Requested) ; "Brett_M,_Kavanaugh@vho. eop. gov Notification Requested); 'Bradford_A. Berenson@who.-eop. Yt Notification Requested Subject: RE: From this week's Texas, I defer to your judgment, and I think we should whet the appetite for Friday's meeting by mentioning the Texas groups' plans. best, v -Original Message From: Tim Goeglein@uho.eop.gov [mailto:Tim Goeglein@who.eop- gov] Sent: Wednesdayy Apri 09,2002 3737 at Tir (at Vint Rcmaciea amp apres inthe, Ricypebess ap gow Cc: NNN, Brett_M._Kavanaugh@uho.eop.gov; Brad ee cua. Sp Gov o Or. Subject: Ret From this week's Texas Lawyer V and A and i x ee ee a ren ren ere re enter ae : eitctie te | in anlmact/s/ on senasteal nese) those sity We coaas: mn ; Une Friday to talk about oven, Estrada and any other nouigaNypavers. ‘houghes? “Y warmly (~*~ tg “C Anne Womack 04/02/2002 06:58:14 PM mente met put activists ¢rom consumer, environmental and abortion rights groups such as Tgxang! for Public Justice, the Sierra Club and the Texas Abortion and Reproductive Rights Action League say they plan to converge on Washington this month to discuss Owen's record with menbers of the Senate Judiciary Committee. Forwarded by Anne Womack/WHO/BOP on 04/02/2002 06:57Heather Wingate 04/02/2002 05:30:59 PM Record Type: Record ‘Tor Anne Womack/WHO/EOR@EOP Subject: latest iteration of comprehensive Owen materials Forwarded by Heather Wingate/¥Ho/E0P on 04/02/2002 \ ° & (Embedded ~y image moved "Willett, Don" AS Record Type: Record nS ea ape ae ape pe lesrer terrestres Oneness etre Ox ee plc04341.pex) (rem Return Requested), “Newstead, Jennifer" Sent: 4/2212002 11:06:54 AM Subject: Re: Estrada & RICO. Attachments: P_KSFV6003_WHO.TXT_1.htm Header #HiHH# NOTES MAIL, ein/OU=WHO/O=BOP [ }6:84.00 IDENTIAL CREATOR:Tim Goeglein ( cN=Tim Goe CREATION DAT2/TINE:22-APR. : UBJECT:: Re: Estrada I (To aust) | (ieee Todd Baustert) [ UNKNOWN |) READ: UNKNOMN rdon Willett :Heather Wingate/WHO/EOP@EOP [ WHO ] 91512002 6:18:10 PM Subject: RE: recap of the final Owen conf. call tonight f##HHe Begin Original ARMS Header #HAH#e RECORD TYPE: PRESIDENTIAL (NOTES MAIL} CREATOR: Brett M. Kavanaugh ( CN=Brett M. Kavanaugh/OU=WHO/O=EOP ( WHO ] } CREATION DATE/TIME: 5-SEP-2002 22:18:10. 00 feameets. het earap af the Final Gwen cone. call trntaht Toranne Wonack | keane, Ronack/ ) EADS ONO ay TOsHeather Wingate ( CNeHeather Wingate/OU=WH0/O=EORGEOP [ WHO] ) o O™ READ: UNRNOMN QO HHHHH# End Original ARMS Header ##H#8# Le 1 asted bon to elaborate on the wailing and gnashing. Reponse GS below. ow ae “Willett, Don" 08/08/2002 08:39:45 PM Record Type: Record 09/05/2002 10: To: Brett M. Kavanaugh/WHo/EOP@EOP ee Te Zero bellyaching on pre-vote effort. (“> © k } The wailing/gnashing was aimed atM@iiMewhd (aii). T don't know if anyone on the call had actually seep Oy PBgdident's passionate in-person remarks. I think they'd only @ea e written statement, which they deemed "anemic". And they wy JY want Defcon 1 retaliation. Rw ( é or (ii) WH post-vote reponse or (iii) WH perceived lack of intent to retaliate? This is important for us to know obviously. (Bnbeddedimage moved "Willett, Don" to file: 09/05/2002 08:55:59 PM picd1549.pex) Record Type: Record To: Brett M, Kavanaugh/WHO/EOP@EOP Subjects REt recap of the final Owen cont. call tontoht \ . & Te wos basically Nay, Leonard, and rcrmbines Bacbare Ledoan the below e-mail “SS is about as specific as ny recall gets, but the e-mail from Kay I just foowarded to you states things pretty clearly. . Inailto:Brett_H._Xavanaugh@who. eop. gov] Sent: Thursday, September 05, 2002 @:11 PM, To: Willett, Don Subject: recap of the final owen conf. call tonight CS Please let me know specifics of who said what abou House. Forwarded by Brett M.(Kavanquifi/uto/BoP on 09/05/2002 09:15 PM (Bubedded image moved "Willett, Don" to file: 09/05/2002 07:26:00, To: “Dinh, viens, Mer. Dinh@usdo}.gov> (Receipt Notification Requested) (rem Return Requés! Brett M. Kavanaugh/mo/B0P@z0P, Tim Goegleif/wHo/ BOP GEOR / Subject: recap of the final Owen conf. call tonight I've already talked to Goeglein by phone re. this Bottom-line: There was much bellyaching, not about the vote, but the Wi response. Kay Daly, Leonard Leo particularly were giving me an earful re. what they (and reportedly plenty of senior people from all over the country who've spentthe day calling, e-mailing, faxing, etc.) thought was a pretty anemic (their word) reaponse by the President and the JH today in the wake of Owen's defeat. They say they've heard from more people than the Admin. cares to think about and have gotten an "objective" report from the hinterlands. There was zero talk of what the Admin. could've/should've done better to Speen ney ee ee ee ee eee Os Gafeuo ld, Tt wae ail about what they viewed af @ topld wi rosponso feared het’ choy fear will be Little to no meaningful retaliation. (though they ae the AG statement dich't set then on fire either.) & In any event, they say, a POTUS statement -- no matter HOW strong gonna do it this team. They were pleading for a high-profile, jaw-dropping presidential act of some kind, "not a ‘Gee, we're really upset at @ turned out.'" ‘They say all deals should be off. “Blow up Parsky," they specific they mentioned.) "We want bashed knee caps and izndoniy They assured me that they're all team players and ae feside the family, but there was a strong sense of dismay -~ "This lame statement is all we're gonna get out of the ihite House?" For what it's worth, there was heaping and ufiversal"Braise all around for oLe, but lots of wailing and gnashing of teeth aimetiowe way. DRW(CN=Brett M. Kavanaugh/OU=WHO/O=EOP [ WHO | Kyle Sampson’WHO/EOP@EOP [ WHO ] 19/28/2002 7:13:35 PM ###HH# Begin Original ARMS Header Hatt? RECORD TYPE: PRESIDENTIAL (NOTES MAIL} CREATOR: Brett M. Kavanaugh ( CN=Brett M. Kavanaugh/OU=WHO/O=EOP [ WHO ] } CREATION DATE/TIME:23-SEF-2002 23:13:35.00 SUBJECT? TOrkyle Sampson { CN=Kyle Sampson/OUSWHO/O=EOP@ROP [ WHO | ) A READ: UNKNOWN #88448 End Original ARMS Header H#4#A f , 6 Ow christian Coalition e-mail that was forwarded to me. AY Subject: ike Meconnel1? AY Author: in 32%) oO bares 9/23/2002 12015 © ae Some of our activists have been concerned about mike mecdynéity’ Sepbsitions the social issues. I told them, "Don't worry, he'll voungirthe life He'll interpret the law as the supreme Court is cui interpreting sbortion a, Taw Then Z heard this westend that Neconnel2 totthghe senators at the heaztg an ee ah Te hearing £0 1 did not hear this. CP is "settled y I'm sorry to say T could not ray Did he actually say “Roe” is sett! AS) ‘The reason the pro-live movement is 2 involved in politics is that"ahelhyant to get a majority of the suprene court to ANY overturn "Roe" someday wey the abortion issue back to the states. If McConnell would not fo overturn "Roe" Lf he ever got to the supreme Court, I wonder if dWived in the 1800's, he would have said the law which ” held that blacks“gual would he hove wotpaidn (OM Moter9 Did anylpf you) hear him say that "Roe" was settled law? / 3/5 of a human being was “settled law." How Thanks « Jim Backlin Director of Legislative Affairs Christian Coalition of AmericaManvel Miranda) ( Manuel_Miranda@judiciary.senate. gov (Manuel Miranda) [ UNKNOWN ] Brett M. Kavanaugh/WHO/EOP@EOP [ WHO ] ; Willett; Don Dinh; Vet ( “willet uNENOWN 1) READ: UNKNOWN To:"Dinh; Viet" ( “Dinh; Viet" Date: : ) Dear Manny, Xin wzdting £0 ask your hel pope 23, 2003, the Life Forum group will be eating. av you iow, tut i off-the-record, invitation-only, confidential sunmit meeting of 1 re of about 50 different major pro-life organizations. it a has not @ppear8tin print. The group includes all the legitimate streams of the movement Wadudational, political, and care ministries, and deals with life issues ranging from abstinence to bioethics, all the way through what is usually considered “Life”, over the years, our agenda has had a recurring item on the topic of judicial hominations. This forthcoming meeting seems a very apropos time to revisit that topic. I would like to invite Al Gonzales and Viet Dinh to speak to the group, along with yourselt It is important that this group have a high level of confidence in thedecisionmaking process of the Administration. As you know, the yappers-at-the- heels on the fringes will be negative, but if the mainstream, which is what the group primarily is, has confidence, that fringe group will be relegated to precisely that -- the fringes. I believe if the white House and the Department of Justice were to honor us with their presence, it would go a long way to building a good working relationship with this important part of the coalition. I would appreciate any influence you could bring to bear to speak to these gentlemen, or their deputies, to dispose them to look with favor on an invitation to the Life Forum on January 23. eee ° & Sincerely yours, 3/13/2003 2:53:15 AM Subject: Re: Senate vote today ft#ve Segin Original ARS Header HHAHeE RECORD TYEE: PRESIDENTIAL QIOTES WALL} CREATOR:Noei. J. Feanciaco ( cicNoel J, Francssco/OU-KHO/O=BOP [ WHO ] ) EREATION BATS/TINB+15-MAR-2002 07:59215.00 Stpozcr:: Re: Senate vote today Torbrett Me Kavanaugh ( G¥-Brett M. Kavanaugh/OUiio/0-BOP@EOP {WHO} ) BEAD, onion aN #8882 End Original ARMS Header #ad#ad = 0 O®* This seens good from a Supreme Court perspective, doesn't it? Tt seems Like potential defectors include: Lincoln Chafee, Susan Collin, Olympia Le Brett M. Kavanaugh 7 03/12/2003 07:41:12 eM Record Type: Record To: See the distribution List at the bottom wn Subject: Senate vote today on a sense of the Senate resolution app! of Roe v. Wade. This passed Senate 52-46 with Biden and McConnelj“Hotwéting. \ ) ‘The 9 R's who voted in support ofr Ben Campbell, Lincoln Chafee, Susan Collins, Kay Bailey HutcHgonighisa Murkowski, Olympia Snowe, Arlen Specter, Ted Stevens, and af pr. The other 41 R's voted against. The 5 D's who voted again Coes John Breaux, Zell Miller, Ben Nelson, Mark Pryor, and Herzy eg other 43 D's yored in favor. To: y alberto BaGod ‘iio7 BOP @BxchangeCBOP David Gf LeitchiyHo/ EOP@Exchange@EOP Helgard|¢. walker/iito/BOPEOP Jennifer tstead/SiH0/BOP@EOP H. Christopher Bartolomucci /iHO/BOP@EOP, Kyle Sampson/WHO/BOP@EOP Moel J. Francisco/WH0/EOF@EOP Benjamin A. Powell/WHO/EOPGEOP Theodore W. Ullyot/WHO/EOP@EOP David 3. Addington/OVE/BOP@EOP Apart from debate on partial birth ae: also voted today fink(Ray A UNKNOWN Bret M Kavanaugh WHO/EOP@EOP [ WHO ] :Tim Goeglein\wHO TEOP@EOP [ WHO ] Sent 4/15/2009 6:69:07 AM Subject: Fwd: con. call Wed @ 2:90 ##AHHE Begin Original ARMS Header ###4H# RECORD TYPE: IDENTIAL (NOTES MATL, OF: KRdal ye MM coor |) TION DATE/TIME: 15-APR-2003 10:59:07.00 SUBJECT:: Fwd: conf. call Wed @ 2:30 To:Brett M. Kavan cneprett W. READ: UNKNOWN TO:Tim Goeglein ( cl READ: UNKNOWN #484¢¢ End Original CREM’ 140 anaugh/0 WHO/O=BOPREOP | WHO | Tim Goeglein/ot ARY S Header #A4#HH Return-path Date: Tue, EDT bye To: KRdal Message-id: <163 17Ba02 MIME-version: 1.0 X-Mailer: 7.0 for Windows sub 10637 text/plain; encoding: 7BIT Larryvote hee toqay. He is complaining n Bagn African American from 2 becatife she had outstanding 3 t#@bet. She drove for three months man Menendez is being a total hy se the Governor of NJ withdrew a C onsideration for NJ Supreme Court Ju warrants for non payment of a speedii without a license. He is complaining that they need @ fikgpadic justice Isn't he the one who said that WiguLJestrada was not Wispanic enough? ima FagbeRyyii1 not be joining the court she is C We are happy that 2 the NARAL Board in Nid Larry Cirignano cath on:(CN=Brett M. Kavanaugh/OU=WHO/O=EOP [ WHO | Ho, James (Judiciary) ledeen, barbara (republican-conf) 3/24/2003 6:43:59 AM RE: Pro-choice op-eds in support of Justice Owen? ##4HH# Begin Original ARMS Header ##AH#¢ RECORD TYPE: PRESIDENTIAL (NOTES MAIL) CREATOR: Brett M. Kavanaugh ( CN=Brett M. Kavanaugh/OU=WHO/O=EOP ( WHO ] } CREATION DATE/TIME:24-MAR-2003 11:43:59.00 SUBJECT: RE: Pro-choice op-eds in support of Justice Owen? TO:"Ho, James (Judiciary)" ( "Ho, James (Judiciary Or [ UNKNOWN ] } READ: cCi"ledeen, barbara (republican-conf)" | (zepublican-conf)" [ UNKNOWN ] } READ: URKNOWN On substance, T had a few thoughts. os =" T'think it very odd to compare Owen to Souter and thereby Pie that she is another Souter or would be another Souter on the K% uiewown e © wi crare court. a clement, Raggi, ing a double standard is a better theme and to compare her ta Méconell. =~ I am not sure that all legal scholars refgr to s the settled law of the land at the Supreme Court\level Jsince Court can always overrule its precedent, and three current Justices/on the Court would do so. The point there is in the inferior court polit. - Tt is hundreds not thousands, I beli iho have obtained bypasses. i XO 03/24/2003 10:14:57 Record Type: . To: “uedget farbira (Republican-conf)" , /'180/ BOPGEOP Brett Mf Ravan = ep names ‘opreds in support of Justice owen? Thanks, Brett. I assume that you didn't find anything substantively problematic with the op-ed draft, then? I don't expect any problems, but just wanted to make absolutely certain in case you had a chance to read it. Barbara, I called you earlier this morning and left a message. If I don't hear back from you soon, I will Just go ahead and contact Ann Stone. T won't proceed on the others, however. Let's talk whenever you get the chance. Thanks! James C. Hothief Counsel Senate Subcommittee on the Constitution, Civil Rights & Property Rights Chairman, Senator John Cornyn judiciary.senate.gov 24-9614 (direct Line: neral office nunber 9 that someone may her doing an op-ed. tio / EOP EOP senate.gov ce op-eds in support of Justice owen? Subject: > I have a one page press release from Ann Stone, dated 7/23/2002, and (fig > two-page letter to Leahy and Hatch. Manny Miranda confirmed that nef > submitted into the committee reco: oat minimum we showls dathae- > Barbara, should the three of us coordinate this morning.gm nw Sbyproceed > getting stone to do the op-ed? > James C. Ho rect Line! 224-2934 (general office line| > PRA 6 | RENN At 08:28 a.m. 3/24/2003, Brett_M._KayaNaygh@uho.eop.gov > >Do you have the letter from last ufmer? Barbara, have ? > Shaypy to de wo again 4 gAMpM but: you a1] may have done 6b. > > (Embedded > > image moved "James “@\ 10» < i >> to file: 03/23/2p0g O&;20:29 PK >> ph > >Record Ty > >To: § \eiaRebgre’ thd digtribution list at the bottom of this message > >subjdct: Rez "Bro-choice op-eds in suy et of Ju > >I have Wopy of that, which I'd be happy to provide to anyone who's > interested. > 1 don't know if it was in the committee record last time, but we should > >dcertainly put it in (again time. > SAE 12:15 p.m. 3/ 3, Brett_M._Kavanaugh gov wrote! > >>Ann Stone was helpful and did letter/release last summer that should be > >sconmittes record and can be used thursday original Message ~.orem ie >oTo:Makan Del Fenenenadters ty Fenate. OV, > >> Rena_Jolinson_Comisac@Judiciary. senate. gov, > >> Alex_Dah1@Judiciary. senate. gov, > >> Manuél_Miranda@frist.senate.gov, > >> Barbara_Ledeen@src.senate.gov, > >> viet.dimh@usdo}.gov, > >> Steve.Koebele@usdoj. gov, >> Kristi. t.Remingten@usdo] .gov, S$ Tania. E. Brownaect gev, >> Brett M, Kavanaugh/‘iHo/EoPeE0e, >> wendy J. Grubbs /wH0/E0e@z0P Sees >Date: 03/22/2003 08:55:30 PM in > dosubject: Pro-cholce op-eds in support of gustice owen? ‘ > >51 learned late Friday that, although high-profile, pro-choice women 9 ( Sy such 3 ann ~y 3 Seeese, Victoria Tosmtiny, ahd omas immbues OF Congrats susan 161th and > >Tillie Fowler may be willing to publish op-eds supporting Justice “yy” Owen's > >>confirmation, apparently no one has yet signed up to ie “S 2 Senn. >> > >>I presume that such op-eds would be very helpful as & edty'« executive below 3 Sti0 > >>op-eds T drafted *relatively quickly*. The retire ante is a more political > >>piece perhaps more appropriate to someon{ 1ike \PEnsing, Molinari, or Fowler: > >>the second draft is geared more specificalivefor someone Like Ann Stone. ° > >>In order to ensure proper =o don't plan to do anything with these > d>until Monday morning. If, Hege ~.. are no expressions of concern > >>ebjection by Monday RS one Swot ith) Saebees edeen oth Monday te cr a —— >>Democrats Talk About Diversity, But Practice Only obstruction > >> President Bush named two of the nation's top jurists to the federal > courts > >>of appeals, when he announced the nominations of D.C, attorney Miguel Estrada > >>and Texas Supreme Court Justice Priscilla Owen nearly two years ago > >olmfortunately, however, both nominees still await confirmation by the United > >>States senate.> >> Amazingly, Senate Denocrats, who repeatedly clained the mantle of > diversity 3 dowien Prowident Clinton vas in the White House, have seen fit to Speeruce both > S>nominees. They have done s0 even though, if confirmed, Estrada would be the S"Sotixst Hispanic ever to serve on the D.C. Circuit, while Oven would >the > sodivaraiey on the rifth cloeute, which represents Texas, wleaissipp{ and 2 Steuisiens. S55 chm sparen far) che Wemcersta! srpermnc caversel 1 ainda, 26 > disturbingly > S>erase and partisan. Au the Dalles Morning fews recently noted, _o “omocests o > sdon't 3 Ssrelish giving President Bush one more thing to brag about when he gg! ‘s > >aDemocrats want to give President Bush credit for placing Wigs on e > >the sf , > >>Figth Circuit. 3 figes ~ all > >> Owen's confirmation would give that court four ey of Pepiapisiinan, wad assiuead bY cartac.|Jepeete XO) wreutaune cr1stea, SS appointed four judges to the Fifth c to \it, didn't nominate a single arty that claims to emphasize diversity. a 335 an aight of this seen eg fs simply cannot afford to see President > >>Bush succeed in confi significantly > >odiscredit their a ( the Democratic Party is for some reason the party > >of > >>women and mipg, >>> X > >> Of cours: © Democrats do not, and cannot, admit that this is rada and Owen, for that would their > >oreall reason “for objecting to Estrada and Owen. Yet they have no real grounds, / > >dwhich to object to either candidate, Both are exceptionally talented and > >odeserving of confirmation. Indeed, the ABA unanimously rated both candidates > >owell-qualified, its highest rating, and what some Senate Democrats used to. > call > >>the "gold standard." > >> Thus, instead of arguing the merits of either nominee, Democrats have > >>concocted reasons to object to their confirmation. With respect toEstrada, > >for > >>example, Democrats complain that Estrada has no prior judicial experience, > >>though that describes a majority of the current court for which he has been > >>nominated. >>> > >> The invented charge against Owen is similarly groundless. Some Denocrats > >>elaim that confirming Owen would somehow threaten a woman's right to choose an > >eabortion. As = fervently pro-choice woman who has studied the law and Owen's > >ynine-year record on the Texas Supreme Court, I find the claim patently eeu 1% 35> First of all, it is widely understood accepted by legal scholars wy > >the > >>board that Roe v. Wade and its progeny are the settled law of the > >sMoreover, federal courts of appeals, which are inferior to oe) court, > >>have no power to overturn Supreme Court precedents like Ro That's ° > why, , > >>the Democrat-controlled Senate last year confirmed Prt Michael. Meconnell > >oto the federal coust of appeals with unaninous confer, MoConnell we > >>(unlike either Oven or Estrada, and like numery ral law professors and > >>conmentators) has publicly stated that Ram v. Yade was incorrectly decided. >>> > >> Second of all, there is no evidenc to. Roe yen though Owen is in fact opposed its > Sprogeny : z jog humoes of oocasios\goW sitting justice of the Texas supzane court. ( 5 ine cniy euing pooee cymonents nate beet able v2 ize, in duspassionate here / 3 SSeluen about ehat statute and those rulings: ransform Justice Owen from a scholarly and Attachment: ;text/plain; charset=iso-B259-1 > MIME Type: ;text/plainKavanaugh, Brett M Leitch, David G.> 7/1/2008 4:33:12 PM Re: Interesting piece from Stephen Carter, who is not conservative, Roe vs. Judicial Sense Forget briefly its immorality—it's just bad law By Stephen L, Carter | posted 07/01/2003 Earlier this year, the nation celebrated—if that is the word—the 30ttYhnivfSary of the Supreme Court's 1973 decision in Roe v. Wade, which held unconstitutional most state lawwS'tewufating abortion, Since then, Roe has become a kind of icon, before which politicians genuflect so gréndly that the same Senate that passed legislation banning partial-birth abortion attached a statement to the effect that the ban does not indicate any disapproval of Roe 4 What we tend to forget in the continuing battle overabortion is what a truly bad constitutional decision Roe really was. I do not mean it was bad in the moral serise,)although a strong case can be made that it was, I mean it ‘was bad in the legal sense, a judicial opinion 3 poorly’ reasoned that it is remarkable Roe continues standing as probably the only unchallengeable precedefit ofthe past 40 years, How bad a decision was Roe? One mightstart with its stunning breadth. The plaintiff claimed to have been raped—this turned out not to be true, But-that is a moot point—and argued that the Texas state law at issue was too burdensome, prohibiting abortion’ even in cases of rape. The way law has been taught for a century in the United States, courts are not Supposed fo reach out to decide issues not presented in the case Canons of judicial decisfon-mitking hold that judges should stick to the issue presented. What is immediately apparent is that in ofdér,for'Jane Roe to prevail, the justices need have ruled no more than that a state lacks the power to outlaw aboition in the case of rape. A decision so framed would have left the rest of the constitutional law of abprtion to'be.wvorked out case by case, an approach that almost certainly would have resulted in a more nuanced bydy of precedent. By reaching to decide more than what the facts demanded, the Court grabbed at thin air, with predictably unfortunate results, Second, the line of argument itself is misty. The justices explained that the ban on abortion necessarily rested on a theory about when human life began; or, at least, any legitimate ban had to have protection of life as its foundation. Yet, the Court noted, over the centuries, human beings have been unable to reach any sort of stable consensus on the question. And if there is no consensus—the majority concluded—then the state cannot regulate. The burden on the freedom of the pregnant woman is too great. But itis difficult to see why the absence of consensus (assuming indeed that it exists) is a constitutional argument. It may indicate why the state is unwise to ban all abortions. It does not tell us why the state lacks the power to do so, Most of the time, if the facts necessary to legislate are unclear, itis the task of the legislators to choose amongpossibilities. Otherwise, Congress could never adopt most environmental laws: the science is usually in dispute, and the laws burden the rights of property owners The Court then proceeded to adopt its own reading of the unclear science, the result of which was the famous trimester structure: little or no regulation in the first trimester, regulation related to maternal health in the second, and a ban (in theory) on the basis of protecting life in the third, Although the scientific evidence changes all the time, the justices continue to cling to this model The weakness of Roe is of course well known to constitutional scholars, most of whom support it nevertheless because they like the result. The pages of the nation's law reviews have been filled for decades with efforts to "rewrite" the decision, that is, to offer it a more stable foundation: sex equality, freedom from religious establishment, any number of others. The justices, however, have stuck to their rather shaky privacy ‘tationale, evidently less persuaded by the proposals emanating from the academy than by their original model. This critique of Roe is independent of one's view of the underlying policy. One may perfectly wel sipport abortion rights in some or all cases and yet think they should be determined by the legislaturéor ableast by court decisions that seem reasonable, as Roe does not. Roe rests not on reason but on fiat: tithe Jaw the land only because the justices say so Thirty years later, it is more apparent than ever that the real trouble with Roe v."Bfa2dk is vhat constitutional scholar John Hart Ely recognized the summer after the decision was handed down*'the problem, wrote Professor Ely, is not that the case is bad constitutional law but that "it is not constituti@naMlaw at all and gives almost no sense of an obligation to try to be." ) From: Davi 6. Leth WHOIEOP GE Nang on 0701/2005 01:41:04 PAM Record Type: Record To: Alberto R. Gonzales/WMO/EOP@Echange, Brett M. KavanaughWHOIEOP@EOP ce: Subject Folldwing upon yesterday's discussion ~- Jeff Rosen writes in The New Republic that, “[bly resurrecting an Lunptincipled! and unconvincing constitutional methodology, the Court will energize the conservatives who have lost the cuture wars, and will allow them to cast themselves as judicial martyrs rather than poltical losers.” | think there's a fair amount of truth in his observation that social conservatives have been losing the culture wars at the politcal level, and that the Court, while leading in some respects by constitutionalizing issues, is not necessarily taking the country ‘where it does not want to be taken,