Friday, June 13, 2008

Supreme over-reach

In a scathing editorial entitled "President Kennedy," the WSJ editors rightly excoriate Justice Kennedy and the 4 liberal Justices who joined him in his crazy opinion that grants Habeus Corpus privileges to non-citizens detained in the amorphous war-zone of the struggle against radical Islam. Read the entire piece.

This is a precious legal heritage for American citizens and legal residents, and its extension to those who are our implacable foes makes a mockery of that heritage. In the process, as the WSJ editors point out, Kennedy has to ignore, among other laws and precedents, Johnson v. Eisentrager. If that decision was correct, the Supreme Court should have ruled differently this past week. If it was incorrect, they should have overturned it.

As every opponent of bad Supreme Court decisions from Dred Scott to Roe v. Wade will agree, the Supreme Court has the right to overturn previous precedents that it feels were incorrectly decided. It is very telling that Kennedy, et al chose not to overturn previous decisions that would have backed up the administration's position on the detainees at Gitmo. They knew that they didn't have the legal chops to do anything of the kind, so they just chose to ignore it.

Should these indefinite detentions continue? No. Should the Supreme Court decide how they end rather than the elected branches of government? Definitely not. No-where in the Constitution is there anything stated or implied that the Supreme Court has jurisdiction over the conduct of war. That is a matter for the President and the Congress to decide.

The fact that Scalia, Thomas, Alito, and Roberts were on the other side from Kennedy and the usual lefty suspects on the Supreme Court is evidence enough that Kennedy's opinion is not based in the Constitution. Scalia and Thomas in particular have been vigilant defenders of things like the right to a jury trial, opponents of confiscation laws in the drug wars, etc. They support due process even when "law and order" types might not like the results.

The first thing to do in a case like this is to see where the originalists line up. If none of them break ranks to join the "liberals," then it it pretty safe to say that the latter are just making up law from the bench as they go along.


Sweating Through fog said...

As I wrote on my blog, McCain could win the election on this issue alone. All he has to do is say that if he is elected, he will ignore this Supreme Court decision.

Montana Headlines said...

This case is a reminder of just how far away we are from restoring restraint to the federal judiciary.

The fact of the matter is that Democratic appointments have been pretty much 100% reliable, while Republican appointments have been very hit and miss.

Only Bush II has a perfect record of appointing solid SCOTUS nominees. Nixon and Reagan had 33% records, while Bush I had a 50% record. In fairness to Reagan, his two "misses" were much more conservative than Nixon and Bush I's misses, and his organized approach to vetting appellate court nominees laid the groundwork for future SCOTUS appointments -- so he should be given at least as high a rating as Bush I.

Much of this, of course, is what each President had to work with, both in terms of available nominees and in terms of the makeup of the U.S. Senate that was doing the confirmations. Democrats controlled the Senate for all of Nixon's appointment, when Justice Kennedy was appointed (we should have had Robert Bork,) and I think with Souter. Bush II had a Republican Senate for his appointments.

McCain can indeed seal the deal with conservatives if he can convince them that he will vigorously vet and appoint only originalists to the bench at every level. This is also an issue where the general public will also respond, since the idea of judges making up law never plays well.

Anonymous said...

Like "sweating," I wondered if the court didn't just give McCain a chance at winning the presidency with its ruling. Democrats would howl, but I could envision an ad that would say something like:

"In June, the US Supreme Court by a 5 to 4 vote granted a constitutional right to foreign terrorists.... Barack Obama supported the court's decision...John McCain said the court's decision was one of the worst in the nation's history..."

"When you vote, it is important to know that Barack Obama will appoint judges who legislate from the bench. John McCain will appoint no-nonsense judges who interpret the law, not make it."

Doug said...

My problem is that the trust issue, with regard to McCain, has already left the station. He can say he'll do x,y, or z, but his track record in such matters leaves me no confidence he will do so. Further, I don't believe McCain would run the advertising anonymous proposes; it would be anathema to his personality and his style of governance.

Montana Headlines said...

Doug, you forget that conservatives didn't trust Bush, either. I certainly didn't.

But he proved himself trustworthy on a number of things on which he never waivered, and one of those things was federal judges. Conservatives stayed "on the reservation" with Bush for a long time in no small part because of his fidelity on that issue.

My hope is that McCain will realize that the judiciary is so important to conservatives that they will stay in his corner as long as he doesn't budge.

One thing is certain -- McCain appointees will be far superior to Obama appointees. It is impossible to conceive of a scenario by which Obama, with a strong majority of Dems in the Senate, won't pack the courts with the very worst sort.

The judiciary is not going to win the election for McCain by itself, but it has the potential of rallying conservatives -- not just for the election, but for the bruising battles with Congress that McCain will have ahead of him if elected.

Doug said...

Well, I'm not sure the Harriet Meyers fiasco would buttress a claim of fidelity, but he eventually did accede to conservatives with that choice, a decision I'm not confident a President McCain would make.

That stated, I also understand your pragmatic approach; a McCain appointee would hypothetically be more an originalist than one submitted by Obama. I just don't believe McCain will stand up and take that bruising battle with regard to appointments because of his penchant for pandering to the left. His record on that is clear.

I won't be voting for hope, no matter which candidate is offering it.

Anonymous said...

Doug may very well be right, that McCain wouldn't run the sort of ad that I outlined.

But that's not to say some 527 wouldn't run something like it in some swing states. In which case the language would probably be stronger than the words I used.

Montana Headlines said...

I share the conspiratorial view that Samuel Alito was always going to be the nominee and that Harriet Miers was cannon fodder for the "it has to be a woman" crowd.

I also now have more respect for McCain's leadership in the Gang of 14, which achieved the confirmation of all but two of Bush's nominees and preserved the ability of Republicans to filibuster leftist judges that we consider to be extreme.

Let's just hope that McCain understands that he needs to do some pandering to the right.