THE swords are being sharpened for the next grand battle in the judicial wars, and based on reports of how both sides are preparing, it seems like the struggle will be over the same trampled turf: abortion, gay marriage, judicial activism.
Conservatives are right to push back on Roe V. Wade, but, sadly, there’s not much question where President Obama’s Supreme Court nominee will stand on abortion and other hot-button social issues. Moreover, despite all the attention paid to Roe, the last time the court heard a challenge to it was 17 years ago, and Justice David Souter’s replacement isn’t likely to have much chance to weigh in on abortion.
So what’s a Republican to do? Focus on an issue likely to come before the Supremes on which they can slam Obama for picking an extremist and that makes for good politics: national security.
Of recent high-court decisions, those that have irked conservatives most and have done the greatest harm to the nation have curtailed the president’s ability to wage the War on Terror.
Take Hamdan v. Rumsfeld. The court ruled 5-3 (the chief justice recused himself) that a Yemeni citizen moonlighting as Osama bin Laden’s driver couldn’t be tried by a military commission because it allegedly didn’t square with the Geneva Conventions. Score: al Qaeda 1, USA 0.
Or take Boumediene v. Bush. A 5-4 majority ruled that Gitmo terrorists have legal protections under the very Constitution they’d like to blow to smithereens.
In both cases, one justice made the difference between letting the elected branches fight America’s wars and seizing that power for the judiciary.
More War on Terror decisions will inevitably work their way up to the next justice. Disputes over Guantanamo and military tribunals are still far from settled, and the issue of the state-secrets privilege is also under assault.
In fact, late last month, the Ninth Circuit, in Mohamed v. Jeppesen Dataplan, ruled against the Obama administration’s request that a wiretapping case be dismissed (because proceeding would require divulging sensitive national-security materials). If the administration decides to appeal the case to the high court, Obama’s nominee — and what he or she believes about state secrets — may determine how much of the president’s executive authority gets ceded to the judicial branch.
It’s not a foregone conclusion that any Obama nominee will side against letting the president and Congress preserve their traditional roles in waging war. Short-lister Merrick Garland, a DC circuit judge, is considered fairly reasonable on national-security matters. But if Obama does pick someone who thinks that judges should take the lead in running the fight against terrorism, Republicans on the Senate Judiciary Committee should prepare for some intense grilling.
It would be worth asking a leading court contender, Solicitor General Elena Kagan, about a letter sent to Congress in 2005, when she was dean of Harvard Law School. It urged the Senate not to adopt an amendment that would have protected the executive branch from the type of lawsuits represented by Boumediene and Hamdan.
If the nominee is 2nd Circuit Judge Sonia Sotomayor, Republicans should ask about her decision in Doe v. Mukasey last year. Sotomayor and two other judges ruled that FBI “national-security letters” seeking records from electronic communications service providers violated the First Amendment. Perhaps coincidentally, the administration announced this week it would not appeal the ruling to the Supreme Court.
Still, Republicans would do well to find out where Sotomayor and other potential picks stand on surveillance issues.
If they don’t, Republicans will miss a key political opportunity. A poll released this week shows Democrats have closed the gap with Republicans on national security. There are few media circuses like Supreme Court hearings — and if the GOP seizes the spotlight to focus attention on some of the left’s more bizarre and dangerous legal theories on the War on Terror, it can only work to its advantage.
After all, by placing terrorism center stage, they might just accomplish one more thing: reminding Washington, and the American people, that we are still at war. With a Democratic supermajority in the Senate, it’s unlikely that Republicans will be able to block Obama’s nominee, no matter how unappealing. Yet if they can use the Souter vacancy to show that the War on Terror isn’t just about preening lawyers, but a real battle fought by real Americans whom a lot of judges are endangering . . . well, there are worse things to get out of a confirmation hearing.
Meghan Clyne is a DC writer.