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The Next Supreme Court and the War on Terror
By Henry Mark Holzer
FrontPageMagazine.com
November 4, 2004
With the election over, a crucially important battle
looms in the War on Terrorism: President Bushs
appointment of federal judges, especially to the
Supreme Court of the United States. Conservatives
cannot afford to lose this battle.
Regrettably, during the campaign little was said by
either candidate about the Presidents power to appoint
federal judges. If George W. Bush had said more, he
might have made voters understand that the War on
Terrorism will be fought in our legal system just as
much as on the battlefield.
Recently, I wrote in this magazine that: If, under
the Supreme Courts decisions in Hamdi, alleged enemy
combatants, wherever held by the United States, are
entitled to due process, and under Rasul they are
entitled to seek habeas corpus relief from federal
district courts, and under Odah they are entitled to
unfettered representation by counsel, then, next there
will be court decisions entitling them to the full
range of constitutional criminal procedural guarantees
under the Fourth, Fifth and Sixth Amendments: no
unreasonable searches and seizures, warrants issued
only on probable cause specifically describing the
places to be searched and the things to be seized, no
double jeopardy, no self-incrimination, speedy and
public jury trials, confrontation by witnesses,
compulsory process for obtaining witnesses, appointed
counsel, Miranda warnings, and much more.
Nothing could underscore more the importance of
President Bushs future judicial appointments than
these three Supreme Court decisions, and what they
imply about future cases.
The last four years have seen a Republican-controlled
Senate reject first class presidential judicial
nominationsmost notoriously that of Miguel Estrada to
the United States Court of Appeals for the District of
Columbia Circuit. Although nominees like Estrada
received strong professional endorsements, cleared the
Senate Judiciary Committee, and apparently could have
commanded majority votes in the full Senate, two things
prevented that from happening. One was recurrent
Democrat filibusters (thought by some, including
myself, to be unconstitutional), which under Senate
rules can only be broken by a supermajority vote of
sixty Senators. Second was the timidity of the Senate
Republican leadership even to attempt to break the
filibusters by wearing out the Democrats, by
parliamentary maneuvers, and/or by mounting a
constitutional challenge to their obstructionism.
Because the judicial appointment stakes during the
next four years will be so high, Conservatives can no
longer afford either the Democrats aggressiveness or
the Republicans defeatism.
Putting aside the importance of federal district
courts, where terrorists are tried and sentenced, and
of federal courts of appeal, where the Constitution and
federal statutes relating to terrorism are initially
interpreted (in cases that, for the most part, never
reach the Supreme Court of the United States), the fact
is that the Supreme Court itself is now up for grabs
because of Chief Justice Rehnquists regrettably
serious illness.
In recent years there have been only two or three
reliable conservative votes on the Court; Justices
Scalia and Thomas, and sometimes Rehnquist. At the
opposite pole are the unreconstructed liberals;
Justices Stevens, Ginsburg, Breyer, and usually
Souter. Justice Kennedy, however characterized, is not
a reliable conservative vote, and Justice OConnor
(sadly, President Reagans affirmative action
appointment) saved Roe v. Wade from being overruled.
The Chief Justices age, and now President Bushs
reelection, alone marked Rehnquist for retirement
soon. His illness is bound to accelerate the process.
Often, to fill the Chief Justiceship, a President will
elevate an Associate Justice to the Chiefs chair, the
fill the open slot with a new nominee. Thats how
Rehnquist became Chief Justice, with Scalia filling
Rehnquists seat. So when Rehnquist leaves the bench,
Bush could appoint a Chief Justice from within the
Court, and then appoint another justice as well.
If, for example, President Bush were to fill the
Rehnquist seat with either Scalia or Thomas and fill
the open seat with a strong conservative, that would
leave the playing field about where it is today. The
result would be the same if the President left Scalia
and Thomas as associate justices, and replaced
Rehnquist with a conservative. Either way, there would
be no net gain from todays status quo.
If there are to be conservative gains on the Supreme
Court, two things must happen. First, there must be
other vacanciesand there may be: Justice Stevens is at
an advanced age, and Ginsburg and OConnor, like
Rehnquist, have been treated for cancer.
More important, however, is that no matter how many
vacancies President Bush has an opportunity to fill in
the next four years, he will confront a phalanx of
liberal Senators, among them Kennedy, Leahy,
Schumerwho have used the filibuster with unusual
perserverence, opposed only by ineffectual
Republicansto sink several of the Presidents most
important first-term judicial nominations.
These Senators and their Democrat cohorts are poised
to renew their obstrucinist tactics. They know that
the post-Rehnquist Supreme Court will probably have to
decide cases crucial to the War on Terrorism: the
Guantanamo prisoners challenging their confinement and
treatment; the ACLU trying to repeal important sections
of the Patriot Act; the political-Left criminal defense
bar attacking the material support to terrorists
provisions of federal statutes; and perhaps the
constitutionality of the War on Terrorism itself. If
any of these cases, and/or others like them, reach the
Supreme Court, the Hamdi, Rasul and Odah cases
underscore that just one or two justices can deal a
crippling blow to Americas defense against Islamic
terrorists.
In light of what may confront the Supreme Court in the
near future, Conservatives can no longer allow a
militant Democrat Senate minority to use their arguably
unconstitutional supermajority tactic to deny the
President appointments of his choice to the Supreme
Court. Nor can Conservatives allow the timid
Republican Senate, now within approximately five votes
of killing filibusters, to use only half measures in
advancing the Presidents judicial nominees. The
Republican controlled Senate has a moral obligation to
wear out the Democrats on the Senate floor, best them
through smarter parliamentary maneuvers, and/or mount a
serious constitutional challenge to their dangerous obstructionism.
Immediately after September 11, and frequently since
then, President Bush has said that there are many
fronts in the War on Terrorism: military, political,
economic, cultural, religious, financial.
Conservatives will make a huge, perhaps fatal mistake,
if they ignore the judicial front. And so will
President Bush.
*Henry Mark Holzer (www.henrymarkholzer.com)
is Professor Emeritus at Brooklyn Law School.
Copyright2004 FrontPageMagazine.com
--
LP
"We are fighting today for security, for progress,
and for peace, not only for ourselves but for all
men, not only for one gen
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