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2004 Section 2: The Law under George W. Bush Institute of Bill of Rights Law at the William & Mary Law School

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Copyright c 2004 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/preview The Law Under George W. Bush

The

High Court Says Detainees Have Right to Hearing David Savage 31

War of Secrets: JudicialRestraint; The Imperial Presidency vs. The Imperial Court Linda Greenhouse 35

Two Out of Three Ain't Bad; Assessing the Supreme Court's DetaineeRulings Peter Berkowitz 38

No Blank Check David Cole 41

Tribunals to Weigh Detainees' Status: Setup is Response to Supreme Court Ruling on Rights Charles Savage 43

By Flouting War Laws, US Invites Tragedy Erwin Chemerinsky 45

Gitmo' Better Blues Neal Katyal 47

Memo Lists Acceptable 'Aggressive' InterrogationMethods Toni Locy and John Diamond 50

A Crucial Look at Law John Yoo 52

Slim Legal Groundsfor Torture Memos; Most Scholars Reject Broad View of Executive's Power R. Jeffrey Smith 54

A 'Torture' Memo and Its Tortuous Critics Eric Posner and Adrian Vermeule 57

Bush Pushesfor Renewal ofAntiterrorism Legislation Richard W. Stevenson and Eric Lichtblau 59

Repeal the PatriotAct Andrew P. Napolitano 61

27 The PatriotAct Without Tears Andrew C. McCarthy 63

Executive Privilege

Justices' Ruling Postpones Resolution of Cheney Case Linda Greenhouse 66

At the Court, Inflating the White House's Power Joan A. Lukey 69

Refusal to Testify Has Precedent Charles Lane 72

Charlie McCarthy Hearings Maureen Dowd 74

President'sPrivilege; Why Bush Didn't Want Condoleeza Rice to Testify Before the September 11 Commission - and Why She's Going to do so Today Terry Eastland 76

Power Plays Alexis Simendinger 78

The Social Conservative Agenda

A New Meaningfor 'Bully Pulpit' Susan Jacoby 82

A Senator's Call to 'Win This Culture War' David D. Kirkpatrick 84

Winning While Losing Richard W. Stevenson 87

George W, Judicial Activist Timothy Noah 89

The Politics of Piety; Bush's Public Religiosity Connects with America - and That Will Win Him Votes Charlotte Allen 91

Look Left Jonathan Chait 94

28 The Supreme Court as an Election Issue

Fighting Over the Court: It's Tough to Make the Supreme Court into an Election Issue William G. Ross 97

Bush's Justice Terry Eastland 100

Admit the Obvious: It's a Political Process; Ideology Governs Judicial Confirmations.Let's Say So David Greenberg 103

Dismissed in Boston: Why Won't the Democrats Talk About Judges? Dahlia Lithwick 106

Appointments

The Right- Wing Assault; What's at Stake, What's Already Happened and What Could Yet Occur Cass R. Sunstein 108

Remarks by the President During FederalJudicial Appointees Announcement 111

Stop the Madness; In the Judicial Nominations War, Do Unto Others as You Would Have Them Do Unto You. Stuart Taylor Jr. 113

Checkmate in the Judges Game? For democracy's sake, President Bush should threaten a recess appointment, or two. Randolph J. May 116

Bush Bypasses Senate On Judge; Pickering Named To Appeals Court During Recess Mike Allen and Helen Dewar 119

Statement on Appointment of William H. Pryor Jr. 122

Understudies Clay Risen 123

Here's What Less Experience Gets You Michael J. Gerhardt 126

29 Activist, Schmactivist Dahlia Lithwick 130

The Case of the GraduallyDisappearing Supreme Court Stuart Taylor Jr. 132

30 THE WAR ON TERROR

High Court Says Detainees Have Right to Hearing

Los Angeles Times June 29, 2004 David G. Savage

The Supreme Court on Monday ruled that and hold terrorists and their allies - the Constitution gives all people held under including U.S. citizens who fight for the U.S. control a right to their day in court, enemy. rejecting President Bush's claim that the war on terrorism gives him, as commander in But they also said all these detainees, chief, the unchecked power to imprison including about 600 foreigners currently "enemy combatants." held at the U.S. naval base at Guantanamo Bay, , have a right to challenge the "We have long since made clear that a state government's case against them. of war is not a blank check for the president when it comes tot he rights o ft he n ation's Civil libertarians hailed Monday's decisions citizens," Justice Sandra Day O'Connor for upholding the principles of due process wrote. Even in wartime, the Constitution of law, and Pentagon officials scrambled to "assuredly envisions a role for all three accommodate what was expected to be a branches [of government] when individual flood of demands for hearings by detainees liberties are at stake." who said they were not fighting for the or Al Qaeda. U.S. soldiers may capture enemy fighters on the battlefield and U.S. agents may seize Although some legal experts said they were suspected terrorists at home, but that is not not surprised that the court insisted on the end of the matter, the justices said. protecting the rights of American citizens, Detainees still have a right to challenge the they expressed delight that a solid majority basis for holding them. of t he court s aid even n oncitizens c aptured abroad were entitled to a fair hearing. "The great writ of allows the judicial branch to play a necessary role in "The United States can no longer hold maintaining this delicate balance [between detainees in a 'rights-free zone,' " said security and liberty], serving as an important James Fellner of Human Rights Watch. check on the executive's power in the realm "They can now have their day in court." The of detentions," O'Connor said. Bush administration's contention that it could hold foreigners at Guantanamo In the high court's first review of the without regard for the protections of the president's constitutional powers in the war Geneva Convention or the standards of on terrorism, the administration won on one international law, Fellner noted, has been key point. Five justices agreed that in the roundly criticized abroad. wake of the Sept. 11 attacks, Congress had given the president special powers to capture Despite the broad setback, the White House

31 and Justice Department said Monday that Justices David H. Souter and Ruth Bader they were pleased the court had upheld the Ginsburg also said Hamdi should be freed president's authority to detain "enemy because the government did not have the combatants" as part of the war on terror. authority to arrest and hold U.S. citizens without filing criminal charges. In one ruling, Rasul vs. Bush, the court said 6-to-3 that the hundreds who were captured Four others, led by O'Connor and joined by in and elsewhere and held at Chief Justice William H. Rehnquist, Guantanamo Bay have a right to challenge Anthony M. Kennedy and Stephen G. their imprisonment in an American court. In Breyer, said the government may hold U.S. a second, Hamdi vs. Rumsfeld, the court citizens such as Hamdi who are captured as ruled 8 to 1 that a U.S. citizen who was "battlefield detainees." Nonetheless, they captured in Afghanistan and held in a must be given a lawyer and a hearing before military brig in has a right to a judge, the court said. a lawyer and to a hearing before a judge. The Constitution says the government may In a third case, citing a technical error, the not deprive a person of liberty without due court failed to decide whether American process of law, and "Hamdi has received no Jose Padilla, arrested in Chicago, can be process," O'Connor said. held by the military. Only Justice Clarence Thomas agreed with Despite their disagreements on the details, the administration's view that the president justices across the ideological spectrum said can order the arrest and the indefinite the principles of due process of law and detention ofA mericans w ho he b elieves to respect for civil liberties cannot be swept be terrorists or enemy fighters. aside by the president or his military commanders, even in wartime. In the Guantanamo case, the court said the hundreds of people being held there have a "The very core of liberty secured by our right to challenge their imprisonment before Anglo-Saxon system of separated powers a judge. Administration lawyers had has been freedom from indefinite maintained these "enemy aliens" captured in imprisonment at the will of the executive" wartime were outside the jurisdiction of the branch, wrote conservative Justice Antonin U.S. courts, in part because they were in Scalia in an opinion that also spoke for Cuba. liberal Justice John Paul Stevens. "If civil rights are to be curtailed during wartime, it Disagreeing, the high court said their must be done openly and democratically, as location doesn't always matter. As long as the Constitution requires, rather than by the detainees are under the exclusive control silent erosion through an opinion of this of U.S. authorities, judges have the authority court." "to determine the legality of the executive's potentially indefinite detention of Scalia and Stevens agreed in the case of individuals who claim to be wholly innocent Yaser Esam Hamdi, a -born man of wrongdoing." of Saudi parentage, that Hamdi should be freed unless the government intended to The court did not say how this would work. charge him with treason. The opinions do not suggest the detainees

32 are entitled to a full-blown trial in a federal such as Hamdi - or, more broadly, to Court. Instead, they are likely to be given a Americans who were arrested in the United hearing before a military judge at States and accused of being allies of Guantanamo. However, a federal judge is America's enemies. likely to oversee the process to ensure its basic fairness. The answer may have to await further rulings. In Monday's decision, Breyer joined In the case of Padilla, who is being held on O'Connor's opinion that said the military suspicion of plotting with Al Qaeda to may hold "battlefield detainees." However, explode a radioactive "dirty" bomb, the he dissented in the case of Padilla. Scalia court failed to decide whether an American also said that in the case of an American citizen arrested within the United States can citizen, the government may hold him if it be held indefinitely by the military. In a 5-4 charged him with treason. ruling, the court threw out the case and told his lawyer to start over in a different court. Their opinions suggest a majority of the justices do not believe the government may Arrested at O'Hare airport, authorities took indefinitely hold Americans arrested within Padilla first to and then to a the United States. military brig in South Carolina. In Monday's decision, the court said Padilla's lawyers But White House officials saw the ruling as erred by filing a suit in New York rather endorsing their position on holding enemy than in South Carolina. combatants.

In the Hamdi case, five justices agreed that "The president's most solemn obligation is in the wake of Sept. 11, Congress had given to defend the American people, and we're the president special powers to arrest and pleased that the Supreme Court upheld the hold U.S. citizens who are fighting for the president's authority to detain enemy enemy. They cited the resolution passed by combatants, including citizens, for the Congress that, in effect, authorized the duration ofthe conflict. The administration invasion of Afghanistan. It said the president is committed to fashioning a process to may "use all necessary and appropriate force review determinations in a against those nations, organizations or way that addresses the court's concerns and persons he determines planned, authorized, permits the president to continue to exercise committed or aided the terrorist attacks." his constitutional responsibility as commander in chief to protect the nation in The court said this broad authorization times of war," said White House allowed Bush to order the military to spokeswoman Claire Buchan. "detain, for the duration of hostilities, individuals legitimately determined to be Sen. John F. Kerry of Massachusetts, the Taliban combatants who engaged in armed presumed Democratic presidential nominee, conflict with the United States." applauded Monday's rulings as upholding American values. He also faulted the It was not clear whether the president's administration for not giving accused power to order indefinite detention applies terrorists a lawyer and a hearing. only to citizens who were captured on foreign battlefields fighting for the enemy -

33 "With respect to detainees, it is vital to uphold the Constitution of the United States, to respect civil liberties and civil rights even as we protect our country," Kerry said. "I would have wished this administration could have done ... what was in keeping with our values and the spirit of our country."

34 War of Secrets: Judicial Restraint; The Imperial Presidency vs. The Imperial Judiciary

New York Times September 8, 2002 Linda Greenhouse

In its aggressive conduct of the war on occupants h ad Iost. C ompromise i s s een as terrorism's domestic front, the Bush weakness. That stance helps explain the administration has encountered few administration's seemingly counter- obstacles from Congress or public opinion. productive refusal to hand over various Rather, it is federal judges, across the kinds of information demanded by ideological spectrum, who have responded Congress, as well as its aversion to a with skepticism, alarm or downright consultative foreign policy. hostility in recent weeks to the administration's sweeping claims of It may also explain the administration's so unbridled executive authority to hold secret far self-defeating legal strategy in the deportation hearings, label and incarcerate terrorism-related cases, which seems to "enemy combatants" without access to amount to driving headlong into a judicial lawyers or judges, and commingle activities roadblock. In a legal system that emphasizes of counterintelligence agents and criminal nuance, the administration defends its prosecutors. positions categorically: no judicial review, no right to counsel, no public disclosure, no While it is a fascinating and, in many open hearings. Even judges whose every quarters, unexpected development, it instinct is to defer to plausible claims of actually should come as no surprise to find national security have recoiled. "If they the judiciary in a restraining role. The would just go through the motions, suggest conflict now unfolding between the two that they have some feel for due process, branches has not only a historical dimension they would probably win instead of but an institutional one. Current trends offending the judges," Professor Rodney A. within each branch may, in fact, have made Smolla of the University of Richmond the clash between the two inevitable: the School of Law said of the administration. imperial presidency versus the imperial judiciary. As for the courts, the Supreme Court is in an era of judicial supremacy reminiscent of the Throughout American history, each 1930's. The justices are invalidating federal institution has gone through cycles of laws at double the rate of the "activist" muscle-flexing and relative passivity. Warren Court, curbing Congressional Through some alignment of the stars, last authority, and propounding novel theories of Sept. 11 found both the White House and immunity for the states from the reach of the Supreme Court in alpha mode. From its federal law. While the federalism revival earliest days, the Bush administration has may be Chief Justice William H. been animated by a belief that in relation to Rehnquist's most conspicuous achievement, other Washington power centers, the White the court's institutional boldness may be his House must reclaim authority previous legacy. "This is a court that says that judges are better able than the P.G.A. to define the

35 essence of golf," said Walter E. Dellinger, citizens." Then she added: "By the same acting solicitor general during the Clinton token, the first priority of the judicial branch administration, in a wry reference to a case must be to ensure that our government decided last year concerning a disabled always operates within the statutory and professional golfer. "This is a court that constitutional constraints which distinguish decided a presidential election." a democracy from a dictatorship."

How the Supreme Court will rule on the Judge Kessler was particularly scathing in various terrorism-related controversies now rejecting the administration's argument that making their way to its docket is, of course, the names of defense lawyers had to remain unknown. But there is little doubt that the secret for, among other reasons, their own climate it has created has empowered judges protection. "It is worth noting that lawyers to defend judicial prerogatives. are a hardy brand of professionals" with a "long and noble history of fighting for the The judges of the United States Court of civil liberties and civil rights of unpopular Appeals for the Fourth Circuit, the individuals and political causes," she said, conservative Richmond, Va.-based court adding, "the government assumes, without that the administration hand-picked by any support, that citizens do not understand sending two American-born "enemy the role of defense lawyers." combatants" to military prisons in its jurisdiction, expressed doubt about what "Maybe we've learned from our mistakes," they called the administration's "sweeping said Prof. David Cole of the Georgetown proposition" that "any American citizen University Law Center, reflecting on the alleged to be an enemy combatant could be history of courts realizing after the fact that detained indefinitely without charges or the trade-off of civil liberties for security in counsel on the government's say-so." times of crisis was unnecessary. He said Vietnam and Watergate "taught us what Not surprisingly, judges often display a secrecy can cover for." special sensitivity when they perceive a challenge to the integrity of the legal system. In addition, he explained "we've become a Last year, for example, the Supreme Court more rights-oriented society," with a range struck down a federal law that barred of civil liberties groups "giving courts lawyers paid by the Legal Services courage from knowing they're not alone." Corporation from making particular Not all such groups offer a traditional liberal arguments on behalf of clients on welfare. view. The libertarian has been outspoken in its concern about an In the current terrorism c ases, some judges opportunistic growth of government power. appear to believe the administration needs nothing so much as a good civics lesson. "No one can deny the fact that if the cycle of Judge Gladys Kessler of Federal District terrorist attack followed by government Court here, ruling last month that the curtailment of civil liberties continues, government had no right to conceal the America will eventually lose the key identities of hundreds of people arrested attribute that has made it great, namely, after Sept. 11, said "the court fully freedom," Timothy Lynch, director of understands and appreciates that the first Cato's project on criminal justice, wrote in a priority of the executive branch in a time of position paper. It concluded: "A free and crisis is to ensure the physical security of its

36 independent people should not expect supernatural powers from their president."

37 Two Out of Three Ain't Bad Assessing the Supreme Court's Detainee Rulings

The Weekly Standard July 19, 2004 Peter Berkowitz

Given his constitutional role as commander national security and civil liberties. To the in chief, with principal responsibility for the contrary. The Bush administration, for nation's security, the president might be example, suffered self-inflicted wounds expected to overreach occasionally in times when it refused to grant the detainees at of war, to place the energetic defense of the Guantanamo Bay the adequate minimal country ahead of the meticulous process, well grounded in the laws of war, safeguarding of civil liberties. Equally, for determining whether the government had given its constitutional role as guardian of correctly classified them as enemy the fundamental laws of the land, the combatants. And in Rasul v. Bush a Supreme Court might be expected to patrol provoked Court struck back. It ruled that zealously the boundaries established by the noncitizen or alien enemy combatants who Constitution for the protection of individual have not set foot in the United States and are liberty, and occasionally even to go to an detained outside of the territorial jurisdiction extreme to ensure that the executive respects of any U.S. federal court nevertheless have a them. And as a consequence of the wartime right to challenge their detentions in any contest between the executive and the Court, federal district court they please. as each seeks to advance the interests and Unfortunately, to reach this result the Court uphold the honor of its constitutional office, distorted its own cases, arrogating to itself a one could reasonably hope that both national scope of review of military detentions it had security and civil liberties would be given not previously been thought to possess. their due to the extent possible. So, the Supreme Court now having spoken, On the basis of the Court's decisions in the there remains work to be done in hammering enemy combatant detention cases, handed out the proper balance between waging the down June 28, it is a pleasure to report that present war effectively and maintaining the the system is working more or less as scrupulously. This is particularly designed. In waging the war on terror, the challenging as the nation confronts a executive branch has certainly pushed the shadowy adversary, himself ruthlessly legal limits of its prerogatives. And the indifferent to the distinction between lawful Supreme Court has responded, pushing combatants and civilian noncombatants, back, at times quite aggressively, in the who has at his disposal or is bent on opposite direction. obtaining weapons of great destructiveness. Still, the United States is at war, and the not to suggest that the legal This is certainly constitutional order holds. positions of the administration have been ideal, or that in Hamdi v. Rumsfeld, Indeed, notwithstanding its overreaching, Rumsfeld v. Padilla, and Rasul v. Bush the the Court's decisions vindicated the core Court achieved an optimal balance between

38 constitutional principle that there is no arguments. Just as there is no bar to holding unreviewable executive power to detain a U.S. citizen as an enemy combatant, she individuals. To be sure, in none of the cases reasoned, so too being held as an enemy did the government deny the right to due combatant should not prohibit a U.S. citizen process. What was at issue in all three was from invoking his constitutional rights. the degree of process due an individual While she rejected the notion that a citizen designated by the military, or the president held in the United States as an enemy directly, as an enemy combatant. In essence, combatant was entitled to the full panoply of the government contended that it was protections under the Constitution for enough to assert facts that, if true, would citizens charged with criminal conduct, warrant such a designation. And the Court Justice O'Connor did rule that the ruled, in sum, that individuals held as enemy government must give citizens alleged to be combatants-whether citizens or aliens, enemy combatants and held in the United whether held in the United States or abroad- States "a meaningful opportunity to contest had the right to challenge before an the factual basis for that detention before a impartial tribunal the factual allegations on neutral decision maker." the basis of which they had been captured and incarcerated. The case of Jose Padilla, who came to the United States in May 2002 allegedly to lay In Hamdi v. Rumsfeld, the court struck the the groundwork for a dirty bomb attack, balance nicely. Seized on the battlefield in presented an even stronger challenge to Afghanistan in 2001, Yaser Esam Hamdi, a indefinite military detention without charge U.S. citizen, has been detained in the United or trial. Padilla not only is a U.S. citizen but States since April 2002 without formal also was seized on U.S. soil. The Court, charges or proceedings. This was necessary, however, in a 5-4 opinion authored by argued the Bush administration, not only to Justice Rehnquist, declined to rule on the prevent him from returning to fight with the merits on the grounds that Padilla had failed enemy (the internationally recognized to bring his challenge to the federal district justification for the detention of enemy court that had jurisdiction to hear it and, in combatants) but also in order to subject him bringing the suit against Secretary of to extended interrogation that could yield Defense Rumsfeld, had failed to identify the precious information concerning al Qaeda's correct respondent, namely, the whereabouts, intentions, and capabilities. commanding officer at the South Carolina Hamdi's court-appointed counsel countered Navy brig in which he was imprisoned. that indefinite military detention without charge or trial in a war that could last the How strange, therefore, that the Court ruled detainee's lifetime violated his Fifth and in favor of the detainees in Rasul v. Bush. In Fourteenth Amendment due process rights, contrast to Padilla, they were alien enemy in particular the right of all persons detained combatants not citizens, held outside the in the United States to the writ of habeas United States not inside the country, and corpus, the legal means by which a detainee they filed suit against the president rather asks a court to review the basis for his than the commander at Guantanamo Bay. In imprisonment. fact, the Court seemed bent on sending a message to the administration regardless of Writing for a plurality and announcing the the s ettled I aw that it n eeded to trample to judgment of the Court, Justice O'Connor do so. recognized the force of both parties'

39 Contrary to University of Chicago law jurisdiction wherever the U.S. military holds professor Cass Sunstein, who argued in the foreign enemy combatants inasmuch as U.S. New York Times that the Court in Rasul courts have jurisdiction over the secretary of decided the issues before it in the "narrowest defense and his boss, the president. possible fashion," the Court reached its result by silently and tendentiously The constitutional contest between the overruling the controlling precedent. In executive and the judiciary over how to Johnson v. Eisentrager (1950), the Court balance the competing claims of security held that it is a precondition for the filing of and liberty is by design perennial. At the a writ of habeas corpus by an alien detainee same time, and also by design, there is only that he be held within the territorial so much the executive and the judiciary, jurisdiction of a U.S. court. In keeping with given their limited powers, can accomplish. Eisentrager, the Supreme Court might have It would be welcome, therefore, in the next narrowly ruled that the Guantanamo Bay round for the third branch, Congress, to step detainees have a right to challenge their in and clarify not only the jurisdiction of detentions in U.S. courts because U.S. federal courts in the case of alien enemy control over Guantanamo Bay, by combatants held abroad, but also the details longstanding agreement with Cuba, amounts of the procedural protections due citizens to in all but name the exercise of wherever they are held as enemy sovereignty. In fact, in a 6-3 decision written combatants. Both the circumstances and the by Justice Stevens, the Court appears to constitutional system call for this. have ruled, extravagantly, that U.S. federal district courts may hear legal challenges Peter Berkowitz teaches at George Mason from alien enemy combatants at University School of Law and is a fellow at Guantanamo Bay b ecause U.S. courts have Stanford's Hoover Institution.

40 No Blank Check

The Nation July 19, 2004 David Cole

"A state of war is not a blank check for the backward in deference to claims of national President." The Bush Administration's security, upholding the incarceration of claims "would turn our system of checks more than 1 ,000 p eople for antiwar speech and balances on its head." "If civil rights are during World War I, and the detention of to be curtailed during wartime, it must be 120,000 Japanese and Japanese-Americans done openly and democratically, as the on the basis of race during World War II. Constitution requires, rather than by silent The last time the Court confronted the erosion." Nation readers have heard these claims of "enemy combatants," during kinds of things before-from me, the World War II, it refused foreign nationals Nation 's editors, the ACLU and other usual incarcerated abroad any access to the courts, suspects. But before now, not from Justice and upheld w ithout o pinion death penalties Sandra Day O'Connor, author of the first imposed in a secret trial on several would-be two quotes. And certainly not from Justice saboteurs captured here, writing its opinion , author of the third. only after the defendants had been executed.

These judicial soundbites only begin to This time, the Court pointedly refused to suggest the magnitude of the loss the Bush defer to the Administration during wartime. Administration sustained in a pair of historic It ruled that foreign nationals held at Supreme Court decisions, issued June 28, on Guantanamo have a right to file habeas its asserted power to detain "enemy corpus petitions in federal court to challenge combatants." In the case that received the the legality of their detentions. And in most complete treatment oft he i ssues, that Hamdi's case, it established that US citizens of US citizen Yaser Hamdi, the Bush are entitled at a minimum to a fair hearing Administration was able to persuade only a on whether they are "enemy combatants" single Justice-Clarence Thomas-to adopt its before they can be held for a sustained position. And the passion of the decisions period. The Court ducked the third case-that suggests that the Justices may well have of Jose Padilla, a US citizen arrested at been responding not only to the detention O'Hare airport-on jurisdictional grounds; cases before them but also to the Justice his lawyers filed their challenge in the Department's August 2002 "torture memo," wrong court. But it is clear that when he which argued-along lines that eerily echo refiles in the correct court, Padilla will be the government's argument in the detention entitled to at least as much as Hamdi, and cases-that the President in wartime is above perhaps more. the law. As the Supreme Court has now formally reminded the Administration, it's The rulings don ot mean that t he detainees President Bush, not King George. will necessarily be released anytime soon. The Court rejected, for example, the The extent of the Administration's loss is broadest challenge to the detention of US brought into relief by comparison with citizens. In the Hamdi case, a majority ruled earlier Supreme Court decisions in wartime. that Congress's authorization of the use of The Court has historically bent over military force against Al Qaeda and those

41 who harbor them permits the executive to 11, the Administration has repeatedly hold in military custody even US citizens insisted that citizens (and indeed the world) who are fighting for the enemy against us. should just "trust us." George W. Bush has done more than perhaps anyone to But the rulings do make it likely that all the demonstrate the poverty of that theory. detainees will get some sort of hearing to We've been asked to trust him about assess their status. In Hamdi's case, the weapons of mass destruction in , torture Court specified what process was due: of detainees, the designation of enemy notice of the charges and an opportunity to combatants, alleged relationships between contest them before an impartial adjudicator. Al Qaeda and Iraq, and the privacy and The Court did not reach the question of what liberty of American citizens. With any luck, process the Guantanamo detainees are due, the Supreme Court's message-that we trust because the only question before it was checks and balances, not imperial whether the detainees could even file a case presidents-will be heard far and wide. in federal court. But there will be tremendous pressure now to give them what the Geneva Conventions require: a hearing David Cole ([email protected]), before a military commission to determine The Nation 's legal affairs correspondent, is their status. the author of Enemy Aliens: Double Standards and Constitutional Freedoms in The broader significance of the rulings lies the War on Terrorism. in their ringing rejection of the argument that to defeat terrorism, the executive must have unfettered discretion. Since September

42 Tribunals to Weigh Detainees' Status Setup is Response to Supreme Court Ruling on Rights

The Boston Globe July 8, 2004 Charles Savage

The Bush administration announced declared that the Guantanamo detainees yesterday a new tribunal before which each broke the laws of war and so are not entitled accused terrorist at Guantanamo Bay may to POW status. Officials did so without challenge his designation as an enemy granting detainees hearings to rebut the combatant, unveiling its response to last evidence against them. week's Supreme Court ruling that opened courthouse doors to the military prisoners A key privilege of POW status is the right to who have been held without trial for two be free from coercive interrogations, which years. has received much greater attention since the Abu Ghraib prisoner abuse scandal in Iraq. All of the roughly 595 detainees held in Guantanamo will be informed by July 17 of The Center for Constitutional Rights quickly their opportunity to come before the new denounced the proposal because it does not Combatant Status Review Tribunal, made up give detainees a right to a lawyer or ensure of three military officers who will vote on that coerced interrogation statements would whether the prisoner really was an Al Qaeda not be used against them. The center or Taliban fighter, according to a four-page represented detainees who won a lawsuit order issued by Deputy Defense Secretary against the Bush administration in last Paul D. Wolfowitz. week's Rasul v. Bush decision, in which the Supreme Court held that civilian courts have Any detainee who is found not to have been jurisdiction to hear challenges to prisoners' an enemy combatant will be sent home, a continued detention without trial. Defense Department statement said. But the likelihood of that happening appeared "The Supreme Court upheld the rule of law remote. A companion "fact sheet" noted that over unchecked executive authority," said each detainee's status has already been Rachel Meeropol, an attorney for the center. reviewed several times by military officials, "The review procedures for the detainees set although not previously by a tribunal. up by the Department of Defense are inadequate and illegal, and they fail to In many respects, the tribunals resemble the satisfy the court's ruling." hearings called for by the Third Geneva Convention, which says captured fighters The tribunal will consist of three military should be given prisoner of war protections officers who have had no prior dealings with unless a "competent tribunal" determines the detainee, at least one of whom must be a they are not entitled to that status. lawyer. Detainees will be assigned a ''personal representative" to review the International law specialists and human government's evidence against them and rights advocates have bitterly criticized the assist in preparing their rebuttals, although Bush administration for two years, since it

43 that officer does not have to be a lawyer, the Although the 6-to-3 decision in the order says. Guantanamo case found only that US courts have jurisdiction to hear challenges, the Detainees will be allowed to call and court issued a companion decision in the question witnesses "if readily available" and case of Yaser Esam Hamdi, a US citizen present evidence to rebut the accusation that who has been held without trial in a South they are Taliban or Al Qaeda fighters, but Carolina brig as an "enemy combatant" the tribunal must presume the government's since being captured in Afghanistan. evidence is correct unless the detainee can prove otherwise. Hearsay evidence and Justice Sandra Day O'Connor, writing for a records of interrogations may be used four-vote plurality in that case, found that against detainees. the government must give Hamdi greater safeguards to rebut the evidence against him Wolfowitz's order does not preclude the before it could legally hold him as an enemy right by detainees to file a separate combatant. Her opinion said he must have a challenge to their detention in civilian court, lawyer, but also suggested that a military and military officials said detainees would tribunal might be sufficient to meet his right also be informed that each "has a right to to due process. seek review in US courts." "The Supreme Court recognized the But the tribunals foreshadow the military's need for flexibility, and indicated government's likely defense to such a that that streamlined process might provide civilian court challenge. The all the procedures that were sufficient even administration's "fact sheet" says the rules for a US citizen," a senior defense official were drawn up to "reflect the guidance the said. Supreme Court provided in its decisions last week."

44 By Flouting War Laws, US Invites Tragedy

Los Angeles Times March 25, 2003 Erwin Chemerinsky

On Sunday, Secretary of Defense Donald thus the rules for prisoners of war do not Rumsfeld quickly invoked international law apply. International law draws a distinction in condemning Iraq's treatment of American prisoners of w ar and i ts u se ofcivilians as between "prisoners of war," who were human shields. As soon as the Americans soldiers fighting for a nation, and "enemy were shown on television, Rumsfeld combatants," who were not acting on behalf denounced Iraq for violating the Geneva of a country; enemy combatants are accords, which govern the treatment of accorded fewer protections than prisoners of prisoners of war. war. Under well-established principles of international law, only those who fought for But Rumsfeld's hypocrisy here is enormous. Al Qaeda and not the Taliban government For two years, the Bush administration has are enemy combatants. The Geneva accords ignored and violated international law and are clear that there must be a "competent thus has undermined the very legitimacy of tribunal" to determine whether a person is a the treaties and principles that constitute the prisoner of war or an enemy combatant. law of nations. Though we all hope, of course, for the quick and safe return of the More than a year ago, Secretary of State American prisoners of war, the fact is that - expressly recognized this but unfortunately -Iraq and other nations m ay nothing has been done despite the feel much freer today to violate international requirements, however ambiguous, in law i nt he w ay they treat w ar c aptives a nd treaties ratified by the U.S. the way they wage war. Several months ago, top-level administration One clear violation by the United States is officials were quoted as saying they knew taking place in Guantanamo Bay, where for many prisoners were being held in the last 15 months the U.S. has held more Guantanamo by mistake because of than 600 captives in clear violation of inaccurate intelligence from foreign international law. governments and because of arrests made in the heat of battle. Therefore, individuals Under the third Geneva Convention, those continue to be held even though it is known who were caught in Afghanistan are deemed that they did not participate in terrorism and prisoners of war if they were fighting for the have no useful information, and even though Taliban. International law prescribes the it is a clear violation of international law to way they can be questioned, how they are to continue to detain them. be treated and when they are to be repatriated. The U.S. government has Many of these individuals have been held in ignored all of these requirements. solitary confinement, some for as long as 15 months, with no charges brought against Rumsfeld has asserted that those held in them and no end in sight. For a time, many Guantanamo are "enemy combatants" and were held in small cages. They have not been allowed to speak to an attorney, and

45 they have had virtually no outside contact. Rumsfeld has criticized Iraq's use of This treatment violates basic principles of civilians as shields against attack at its human rights law. About 25 of the detainees ilitary and political facilities. Although he is have attempted suicide. right that this is despicable behavior, he cannot legitimately invoke international law Several lawsuits have been brought on to govern how a war should be fought when behalf o ft hese d etainees, c laiming that t he the war itself is a clear violation of U.S. is violating international law. international law. Nothing in international Washington has successfully moved to law authorizes a preemptive war to dismiss each of these and has persuaded overthrow a government and disarm it. Our judges that no court has jurisdiction to hear war in Iraq fits in none of the prescribed such claims. This too violates international situations where it is lawfully permissible. law because the International Covenant on Civil and Political Rights states: "Anyone There are enormous costs to such behavior. who is deprived of his liberty by arrest or The United States cannot expect other detention shall be entitled to take nations to treat our prisoners in accord with proceedings before a court, in order that the international law if we ignore it. If the court may decide without delay on the United States wants other nations to live by lawfulness of his detention." The treaty also the rule of law, it too must do so. provides that "[n]o one shall be subjected to arbitrary arrest and detention."

46 Gitmo' Better Blues

Slate Magazine March 19, 2004 Neal Katyal

The rush to create the fig 1eaf of justice at They will demonstrate what critics of the Guantanamo Bay has begun. Next month, military tribunals have been saying all the Supreme Court will review the Bush along: that the administration has sought to administration's claim that no one at create an end run around guarantees of Guantanamo is entitled to civilian court fundamental rights enshrined in our adjudication of their detentions. On the eve Constitution and universally accepted of the Supreme Court deadline for filing its agreements such as the Geneva brief defending that policy, the Conventions. administration announced a newly minted procedure for annual reviews of detentions. There are three main problems with the The irony of this and other actions conspiracy indictments at Guantanamo. The (including the decision announced the day first is their targets. One would have thought before another Supreme Court filing that, having decided to rock the deadline, to allow Jose Padilla, the alleged constitutional order and flout international dirty bomber, access to a lawyer) should not law, the administration would have at least be lost: By modifying its policies in the past reserved the military tribunals for the worst months, the administration has made the offenders "Osama Bin Laden and the like. definitive case for civilian review of Instead, charges have been filed against, if Guantanamo. The only due process that's the prosecutor's claims prove accurate, happened there came only after the Supreme someone armed with a TV camera (a Court agreed to hear the case. videographer of the Cole bombing) and Bin Laden's accountant" both of whom also But don't let these initiatives lull you into allegedly served as his bodyguards. While thinking that the administration has glorifying the Cole bombing and moving al- suddenly decided to follow the rule of law. Qaida money are certainly bad acts, if there The most dramatic step "and one likely to be were any evidence that these two men trumpeted by the government at oral actually engaged in serious war crimes, it argument" was their decision to bring the would be in the indictment. It's not. Instead, first charges against detainees: charges the government can only allege the based on the offense of conspiracy, to be amorphous crime of aiding of al-Qaida. heard by the first military commission since World War II. As some readers of Slate Contrast these vague indictments with the know, I am a big fan of the conspiracy position of Assistant Attorney General doctrine in general. But despite the Herbert Wechsler during World War II. tremendous merits of our civilian conspiracy Wechsler, perhaps the most important 20th- law, these military charges are century scholar of American criminal law, unconstitutional, inconsistent with deplored a Pentagon proposal to file international law, and unwise. conspiracy charges against Germans who were n ot p rime 1eaders. To W echsler, such charges could not be based on ideas drawn

47 from American conspiracy law without To make matters worse, the conspiracy proof of personal participation in a specific charges in both of the indictments are based crime. In the absence of such proof, he said, largely on conduct that occurred before the force of the broad criminal charge 9/11, yet military commissions can only against the leaders may be seriously adjudicate violations of the laws of war. It is weakened in the eyes of the world, a tremendous stretch to argue that t his w ar especially if too many individuals are began in 1999 or 1989. Again, Wechsler is included in it. Today there is no Wechsler in instructive: Atrocities committed prior to a the administration advising restraint striking, state of war.. .are not embraced within the in light of America's recent experience with ordinary concept of crimes punishable as the Independent Counsel Act, another device violations of the laws of war. that encouraged overzealousness at the price of balance and fairness. Fairness and There are good reasons why the laws of war, process, of course, can give way in an unlike American civilian law, place emergency or when the matter concerns Bin powerful limits on the conspiracy doctrine. Laden or his close associates. But a Recall that the civilian offense is based cameraman and an accountant, even if they largely on a theory of deterrence "that double as bodyguards, just don't come close. draconian punishments will scare people into avoiding association with criminal The second problem is in the substance of organizations. But these arguments fail with the conspiracy charges. The Department of respect to the military proceedings at Defense, bowing to the will of the Guantanamo. For one thing, the idea that prosecutors, defined the offense of other would-be war criminals are watching conspiracy in the broadest terms possible. the proceedings at Guantanamo and This definition is similar to the one the modifying their conduct is far-fetched, United States proposed to use at Nuremberg, especially if, as has asserted, with disastrous results. When the Americans the proceedings may be closed to public proposed it then, it was roundly criticized by view. For another, deterrence works best our allies. And when a variant of it was used when the perceived costs of the action at trial, the Nuremberg judges ruled that exceed the perceived benefits, and it is very there could be no such offenses as difficult to make a claim that the speculative conspiracy to commit war crimes or risk of punishment in U.S. military courts conspiracy to commit crimes against would change the calculus of future war humanity. Even U.S. Attorney General criminals (particularly when military Francis Biddle, who sat as a judge, wanted operations against them are already to throw out the conspiracy charges ongoing). This isn't to say that there is no altogether. The result of the Nuremberg upside to conspiracy charges, only that the ruling was to confine conspiracy only to benefits are more attenuated than they are in very limited acts and only against high-level ordinary criminal cases and eroded by German officials, directly involved in serious risks of error. And if there are cases specific acts of aggression. This glaring in which the advantages of a conspiracy deficiency will pose problems because the charge become apparent, then the Supreme Court has acknowledged that administration is free to use the civilian military commissions can, at most, only try offense of conspiracy "one written into law violations authorized by Congress or by Congress instead of drafted by a international law, and the current conspiracy Pentagon bureaucrat" in a standard criminal charges do not fit either category. action.

48 The third and final problem with the Independence, which listed, among the Guantanamo tribunals lies in the procedural founders' complaints against King George, rules. American criminal law has been able that he has affected to render the Military to develop a vibrant offense of conspiracy independent of and superior to the Civil only because of its strong commitment to Power; depriv[ed] us, in many Cases, of the criminal procedural guarantees. So, while benefits of trial by jury; made Judges charges can be somewhat vaguer in a dependent on his Will alone; and civilian conspiracy trial and hearsay transport[ed] us beyond Seas to be tried for evidence may be admitted, the standard pretended Offences. For these reasons, the checks on prosecutorial and judicial abuse Supreme Court said during the Civil War exist" indictment by a grand jury, the right that if tribunals are ever appropriate, it is up to a jury trial, the right to confront to Congress to define how and when they witnesses, the right to obtain exculpatory are to be used. The current administration evidence, and so on. Those of us who defend has argued that this constitutional history a broad substantive offense of conspiracy and structure is not relevant because military treat these procedural rights as preconditions necessity permitted it to act without explicit before such a wide-ranging offense could be congressional authorization. established. Yet the military tribunals offer no such guarantees. But charges aren't being brought against planners of the Sept. 11 attacks or other The administration thus gives birth to a legal terrorist atrocities. Instead, the president is Frankenstein. It picks its jurisdictional using these tribunals against minor theory that no one can have civilian review offenders, where the claim of military from 1950, before we had earth-shattering necessity is weak. To boot, charges are developments in international law (e.g., the being brought nearly two and a half years Geneva Convention's ratification and its after Sept. 11, dramatically undermining the worldwide acceptance) and domestic arguments for avoiding congressional delay. military law (the 1951 Uniform Code of And if the administration prevails at the Military Justice). It picks its procedural Supreme Court, the rules for the military theory from the same time period "before commissions "from the definition of the massive revolution in procedural rights substantive offenses to the procedural rules in American criminal trials. And it derives and review guidelines" will be slanted even its substantive law "the offense of more in favor of the prosecution than they conspiracy "from no real time period at all: already are. it's inspired by cases brought in the 1970s against organized crime. This mix-and- Times of crisis demand special responses. match cannot produce even the closest But when the crises are long in scope, approximation to fairness. without a definitive end, and when time permits national deliberation and decision- The chief criticism of the tribunals has making, both constitutional and pragmatic always b een that t he p resident c annot have values are best served by having our the unilateral power to define offenses, pick nation's representatives and judges consider prosecutors, select judges, authorize that response not resorting solely to charges, select defendants, and then strip the executive decree. The conspiracy charges civilian courts of all powers to review are the most dramatic step yet in the slide tribunal decisions. This principle goes all the down a dangerous anticonstitutional spiral. way back to the Declaration of

49 Memo Lists Acceptable 'Aggressive' Interrogation Methods

USA Today June 28, 2004 Toni Locy and John Diamond

The Justice Department spelled out specific The CIA has consistently refused to discuss interrogation methods that the CIA could its i nterrogation t echniques, and it d eclined use against top al-Qaeda members in a still- to comment on the Justice Department classified August 2002 legal memo, issued memos Sunday. as the spy agency pressed terrorism suspects about possible strikes on the anniversary of In what was viewed as an attempt to limit the Sept. 11 attacks, current and former political damage from the abuse Justice officials said. controversy, the administration last week made public 258 pages of previously CIA officials had demanded specific classified documents. The Justice guidance for handling "high-value al-Qaeda Department disavowed much of its August captives," said a former Justice official who 2002 guidance to the White House as an worked on the memo. The techniques overly broad assertion of presidential power. discussed were "aggressive" but "lawful," the former official said. A current Justice Although the classified Justice Department official who knows the memo's contents memo to the CIA that same month still said it specifically authorized the CIA to use stands, the agency has quietly suspended its "," in which a prisoner is use of the harsher interrogation methods, made to believe he is suffocating. said a former CIA field officer with knowledge of current CIA practices, The memo has not been made public in the confirming an account in Sunday's ongoing investigations of abuse of prisoners Washington Post. by military and intelligence officials. Because the document is classified, the White House counsel said former and current Justice officials spoke on the thrust of the publicly released documents condition of anonymity. The memo is far was that President Bush insisted on humane more detailed and explicit than another treatment of all prisoners, even though legal August 2002 document generated by opinions from Justice and the Pentagon said Justice's there was wide latitude in wartime within concerning U.S. obligations under anti- the limits of anti-torture laws and treaties. torture law. That document has been made public. It is a point the Bush administration emphasized as the president faced repeated Initially, the Office of Legal Counsel was expressions of concern during his trip to assigned the task of approving specific Europe. "It's absolutely clear that the interrogation techniques, but high-ranking president never, in any way, condoned the Justice Department officials intercepted the use of torture," Secretary of State Colin CIA request, and the matter was handled by Powell said Sunday on CBS' Face the top officials in the deputy attorney general's Nation. office and Justice's criminal division.

50 But disclosure oft he detailed memo tot he relevant interrogation documents. Gonzales CIA suggests there are more documents still argues that disclosing specific interrogation closely held by the Bush administration that techniques will help the nation's enemies show high-level officials seeking to push the defeat those methods. But the CIA is likely limits of the law to get warning of terrorist to come under more pressure to disclose attacks. more about its interrogation methods: A CIA contract employee, David Passaro, was The Senate last week defeated a measure to indicted last week in the beating of an demand that the White House disclose all Afghan detainee who later died.

51 A Crucial Look at Torture Law

Los Angeles Times July 6, 2004 John Yoo

Among the Justice Department memos extremists. They do not obey the laws of released recently by the Bush war, they hide among peaceful populations administration, the one that generated the and launch surprise attacks on civilians. most criticism, dated Aug. 1, 2002, They have no armed forces per se, no considered the definition of torture under territory or citizens to defend and no fear of federal criminal laws. dying during their attacks. Information is our primary weapon against this enemy, and Its critics have attacked the differences intelligence gathered from captured between the memo's conclusions and the operatives is perhaps the most effective definition of torture in the 1984 Convention means of preventing future attacks. Against Torture. They've attacked its discussion of possible defenses against An American leader would be derelict of prosecution and of the scope of the duty if he did not seek to understand all his commander in chief's power. Most of all, options in such unprecedented they have attacked the fact that it did not circumstances. Presidents Lincoln during the consider policy or moral issues. Civil War and Roosevelt in the lead-up to World War II sought legal advice about the The Justice Department's Office of Legal outer bounds of their power-even if they did Counsel, in which I served, produced the not always use it. Our leaders should ask memo. It is important to understand the legal questions first, before setting policy or memo's function so that future making decisions in a fog of uncertainty. administrations may receive such candid advice on the most delicate and important Third, there are no easy legal answers about kinds of legal questions. torture, despite the moral certitude displayed by the administration's critics. The Reagan First, there is a clear and necessary and first Bush administrations developed a difference between law and policy. The strict test for torture-the "specific intent" to memo did not advocate or recommend inflict "severe physical or mental pain or torture; indeed, it did not discuss the pros suffering"-that was adopted by Congress and cons of any interrogation tactic. Rather, and the Clinton administration in 1994. It the memo sought to answer a discrete uses words rare in the federal code, no question: What is the meaning of "torture" prosecutions have been brought under it, and under the federal criminal laws? What the it has never been interpreted by a court. law permits and what policymakers chose to do are entirely different things. Second, As a result, the 2002 memo looked to other there was nothing wrong-and everything federal laws, domestic and international right-with analyzing a law that establishes judicial decisions, legislative history and boundaries on interrogation in the war on presidential and diplomatic records, which terrorism. Unlike previous wars, our enemy reinforced the conclusion that the United now is a stateless network of religious States intentionally defined torture strictly.

52 It is easy now for critics to claim that the chief, may have to take measures in extreme work was poor; they haven't produced their wartime situations that might run counter to own analyses or confronted any of the hard Congress' wishes. To ignore these issues questions. For example, would they say that would deny policymakers a view of the no technique beyond shouted questions entire playing field. could be used to interrogate a high-level terrorist leader, such as Osama bin Laden, Our system has a place for the discussion of who knows of planned attacks on the United morality and policy. Our elected and States? appointed officials must weigh these issues in deciding on how it will conduct Lawyers who must answer such questions interrogations. Ultimately, they must answer must also explain possible defenses. For to the American people for their choices. A example, if a police officer were to ask lawyer must not read the law to be more when the use of force is allowed, a lawyer restrictive than it is just to satisfy his own would first explain that killing constitutes moral goals, to prevent diplomatic backlash murder or manslaughter, but he should also or to advance the cause of international explain when self-defense or necessity human rights law. would permit the use of force without criminal sanctions. However valid those considerations, they simply do not rest within the province of the Self-defense and necessity are long-accepted lawyer who must make sure the government defenses to criminal prosecution, and understands what the law permits before it Congress chose n ot to preclude them in Its decides what it should do. statute barring torture, despite language in the Torture Convention to the contrary. John C. Yoo is a visiting scholar at the Similarly, precedent and history support the American EnterpriseInstitute. idea that the president, as commander in

53 Slim Legal Grounds for Torture Memos Most Scholars Reject Broad View of Executive's Power

The Washington Post July 4, 2004 R. Jeffrey Smith

Academic seminars including University of military tribunals that are not subject to California law professor John Yoo are no judicial review. longer apt to be dry discourses on the primacy of executive branch power. At an Georgetown University law professor David American Enterprise Institute session here Cole, a longtime critic of the administration, last week, a heckler shouted that Yoo should called the court opinions in particular a apologize for drafting Bush administration rejection of "this claim of unchecked memos that, in the critic's words, condoned presidential authority which has been torture. advocated in so many areas since September 11" and said, "This is really quite The questioner was ruled out of order, so remarkable." Neal K. Katyal, a counsel to Yoo had no opportunity to say again that he some of the military lawyers defending feels the claim is a distortion of his legal detainees at Guantanamo Bay, Cuba, said he views. But there is little question that Yoo believes recent events mean "the and his former colleagues in the government administration's legal war on terror is utterly - a group of conservative legal scholars who repudiated." maintain that President Bush has broad power to pursue the war on terrorism - are But Viet Dinh, a colleague at Georgetown caught in a discomforting spotlight. and former assistant attorney general who played a key role in drafting the The latest in a series of setbacks was the administration's USA Patriot Act, said a Supreme Court's rejection on Monday of the more narrow legal shift was possible. claim that Bush can detain enemy combatants without independent review. "I would not say [the Supreme Court The court spurned the administration's decisions were] . . . a victory for the request that it defer to the president's executive branch," Dinh said to laughter at a discretion and insisted on what it depicted as Georgetown symposium last week. But he a more careful balancing of national security and Yoo have expressed optimism that some needs and individual rights, a test it said is powers asserted by the administration - such relevant even in wartime. as the right of the president to decide which individuals are enemy combatants based on Some legal scholars argue that the courts' evidence that might not be admissible in decisions - in combination with the court - may be preserved in new hearings on administration's repudiation last week of an individual detainees. internal memo arguing that the president has the power to sanction torture - amount to a Their legal philosophy about presidential permanent rebuke of the expansive view of powers, however, is supported at present by presidential power that has underpinned only a minority of legal scholars, a numerous Bush administration policies, circumstance that became clear from the including an executive order establishing storm of criticism that erupted after the

54 disclosure this month of two memos international law academics." He said their produced by Yoo and others in the Justice depiction of presidential authority instead Department's Office of Legal Counsel. was "squarely within the practices of the government" and past decisions by the An August 2002 memo, provoked by a CIA Supreme Court - a view his critics contest. request for interrogation guidance, suggested that the president's commander- The legal ideas supporting the August memo in-chief authorities meant that those acting are part of a broad philosophy holding that at his direction would be immune from international laws such as the Geneva prosecution for torture. That memo drew on Conventions and the Convention Against a January 2002 memo that suggested, over Torture are. rules that states need not apply the opposition of the State Department's in absolute terms. Advocates claim that legal adviser, that the president could treaties are more like contracts subject to suspend the application of international "situational" adherence than norms of protections for detainees. conduct b inding on every state, s aid David B. Rivkin Jr., a White House lawyer in the Taken together, the memos presented a legal Reagan administration who now works at groundwork for aggressive questioning of Baker and Hostetler in Washington. foreign detainees. On June 22, White House counsel Alberto R. Gonzales publicly "It's a minority viewpoint," said Rivkin, discredited the memo, an extremely rare who shares it. "If you line up 1,000 law event for such opinions. professors, only six or seven would sign up to it." He said some of its adherents are Gonzales called it "irrelevant and associated with the Federalist Society, a unnecessary to support any action taken by conservative legal group formed to combat the president." At the same time, however, what its Web site calls "orthodox liberal he said the legal analysis "underpinning the ideology" and judicial interpretations that president's decisions" on detainees is not fail to safeguard individual prerogatives. being reevaluated, making it clear that the Both Yoo and Bybee, as well as Attorney White House is sticking with its expansive General John D. Ashcroft, are close to the views of Bush's authority. society and frequently speak at its meetings, as are other lawyers appointed to senior Yoo, a former 1aw c lerk to S upreme C ourt Bush administration posts at the Defense Justice Clarence Thomas and principal Department, Justice Department and White author of the August memo, is a well-known House. advocate of strong presidential powers. He was deputy head of the Office of Legal But criticism of the memos' claims of Counsel from 2001 to 2003. But others who presidential powers has come from a wide worked on the memos, including Jay S. range of legal scholars, including past heads Bybee, who headed the office during of the Justice Department Office of Legal roughly the same period and who is now a Counsel and chief legal advisers to the State federal appellate judge, shared Yoo's views Department under Republican and on presidential authority, as did Gonzales. Democratic presidents.

Yoo, who declined to comment on how the Douglas W. Kmiec, a Pepperdine University memos were drafted, said they do not law professor who directed the legal represent "majority views among counsel's office under presidents Ronald

55 Reagan and George H.W. Bush from 1985 key Supreme Court decision that to 1989, termed the August 2002 memo acknowledges congressional power to enact "unrefined" and said its depiction of laws that limit presidential authority. That presidential authorities ran "the risk of being decision, barring President Harry S. Truman misunderstood." He said it failed in from seizing steel mills to stop a strike particular to state clearly that anti-torture during the Korean War, was specifically laws could be superseded only "in grave or cited by the Supreme Court last week in its unforeseen or imminent" crises that do not rulings on foreign detainees. exist at present. Congress has mostly been silent on these Abraham D. Sofaer, a State Department issues. But five Republican senators bolted legal adviser from 1985 to 1990, said he also from their party June 24 to pass a measure considers the August 2002 memo flawed. limiting U.S. interrogation techniques to "We in the Reagan and Bush administrations those that the United States would consider intended that deliberate violations of the legal for other nations to use. It urged the Convention [Against Torture] should lead to prompt prosecution or release of detainees to the criminal prosecution," said Sofaer, who avoid their "indefinite detention . .. which is testified for the executive branch during contrary to the legal principles and security Senate hearings on the convention's interests of the United States." ratification. The Defense Department had opposed the Sofaer said he believes the notion of measure sponsored by Sen. Patrick J. Leahy "inherent" presidential authority to ignore (D-Vt.), saying it would insert Congress the treaty is vague and has little basis. "inappropriately into the executive function of conducting the war on terrorism" and Walter Dellinger, who directed the Office of potentially diffuse the "national focus on Legal Counsel in the Clinton administration, protecting Americans." But this view was said the memo's assertion of presidential rejected by Republicans who have been authority "goes beyond anything OLC has highly critical of detainee abuses. ever stated" and omitted any reference to a

56 A 'Torture' Memo and Its Tortuous Critics

The Wall Street Journal July 6, 2004 Eric Posner and Adrian Vermeule

Recent weeks have seen a public furor over But the memorandum's arguments are a Justice Department memorandum that standard lawyerly fare, routine stuff. The attempted to define the legal term "torture," definition of torture is narrow simply as used in federal statutes and treaties, and because, the memorandum claims, the that p ointed t o c onstitutional questions that relevant statutory texts and their drafting would arise if statutory prohibitions on histories themselves build in a series of torture conflict with the president's powers narrowing limitations, including a as commander in chief An article in the requirement of "specific intent." The New York Times quoted legal academics academic critics disagree, but there is no who criticized the memorandum's authors foul play here. for professional incompetence, and for violating longstanding norms of professional As for the constitutional arguments, the practice and integrity in the Justice memo explicitly limits their context to the Department's Office of Legal Counsel interrogation (1) outside the U.S. (2) of (OLC). Neither charge is justified. identified enemy combatants (3) concerning the enemy's plans of attack. The logic of the The academic critics have puffed up an arguments might be stretched further, but intramural methodological disagreement need not be, and it is routine for executive- among constitutional lawyers into a test of branch lawyers to proceed one step at a professional competence. Although we time, just as courts do. Everyone, including disagree with some of the memo's even the most strident of the academic conclusions, its arguments fall squarely critics, agrees that Congress may not, by within the OLC's longstanding statute, abrogate the president's commander- jurisprudence, stretching across many in-chief power, any more than it could administrations of different parties, which prohibit the president from issuing pardons. emphasizes an expansive reading of The only dispute is whether the choice of presidential power. interrogation methods should be deemed within the president's power, as the memo The academic critics say that the concludes. That conclusion may be right or memorandum counsels an unduly narrow wrong - and we, too, would have preferred interpretation of "torture" in federal law, and more analysis of this point - but it falls well that it urges an overly sweeping conception within the bounds of professionally of the commander-in-chief power; the critics respectable argument. even complain of the memorandum's failure to cite or emphasize specific precedents - The Justice Department memorandum came notably the Youngstown decision of 1953, out of the OLC, whose jurisprudence has in which the Supreme Court rejected traditionally been highly pro-executive. The Truman's attempt to seize domestic steel office has, for example, a notoriously mills for the Korean war effort. expansive view of the president's right to unilaterally send military forces to other

57 countries in order to protect American Justice Department, including John Yoo at citizens and property, without a declaration Berkeley. The memorandum thus focuses of war by Congress. OLC opinions that not on restrictive Supreme Court precedents, justify 's intervention in Kosovo but on the constitutional text, the structure of and George H.W. Bush's intervention in foreign affairs powers and the history of Somalia are no less one-sided than the presidential power in wartime. From this recent memo on interrogation. A Clinton-era perspective, the academic critics' complaints opinion argued that a bill limiting the have a distinct methodological valence, one president's ability to place military forces with intellectually partisan overtones. under U.N. control would violate the president's commander-in-chief power. The critics also argue that the Justice Department lawyers behaved immorally by Not everyone likes OLC's traditional justifying torture. Although it is true that jurisprudence, or its awkward role as both they did not, in their memorandum, tell their defender and adviser of the executive political superiors that torture was immoral branch; but former officials who claim that or foolish or politically unwise, they were the OLC's function is solely to supply not asked for moral or political advice; they "disinterested" advice, or that it serves as a were asked about the legal limits on "conscience" for the government, arc interrogation. They provided reasonable providing a sentimental, distorted and self- legal advice and no more, trusting that their serving picture of a complex reality. political superiors would make the right call. Legal ethics classes will debate for years to There is an important intellectual context come whether Justice's lawyers had a moral behind the academic critics' complaints. An duty to provide moral advice (which would older generation of legal academics surely have been ignored) or to resign in developed something like a consensus in protest. favor of enhanced congressional power over foreign affairs; support for the War Powers For o ur p art, we find ithard to understand Act; and a favorable attitude towards why p eople think that t he l egal technicians Youngstown and other decisions that restrict in the Justice Department are likely to have presidential power. That conventional view more insight into the morality of torture than has been challenged in recent years by a their political superiors or even the man on dynamic generation of younger scholars the street. But whatever one's views on the who emphasize constitutional text, structure use of torture on the battlefield, the and history rather than precedent, a nd w ho memorandum is not "incompetent" or argue for an expansive conception of "abominable" or any more "one-sided" than presidential power over foreign affairs, anything else that the Justice Department relative to Congress. has produced for its political masters.

Among this rising generation are legal Messrs. Posner and Vermeule are professors scholars who have recently held office in the at the University of Chicago Law School.

58 Bush Pushes for Renewal of Antiterrorism Legislation

The New York Times April 18, 2004 Richard W. Stevenson and Eric Lichtblau

President Bush on Saturday kicked off a sharing a lot of information about suspected concerted effort to pressure Congress to terrorists. extend expiring provisions of the antiterrorism law passed after the attacks of In raising the issue again now, Mr. Bush is Sept. 11, 2001, saying that failing to keep hoping to emphasize to the nation the steps them in force would leave the nation he took after the attacks to ensure that vulnerable. terrorists could never again operate so freely within the United States, administration Mr. Bush used his weekly radio address to officials said. The White House has also renew and amplify a demand he first made been considering other steps in advance of in his State of the Union address in January, the commission's recommendations this calling on the House and Senate to act to summer, including an overhaul of the extend provisions of the USA Patriot Act nation's intelligence agencies. that will otherwise expire at the end of next year. The provisions include making it Though the Patriot Act passed Congress easier for law enforcement and intelligence with broad bipartisan support soon after the agencies to share information about attacks, it has subsequently become one of suspected terrorists, expanding the use of the most heatedly debated pieces of wiretaps and search warrants and allowing legislation to come out of Capitol Hill in the government to track who is sending e- decades. mail to or receiving it from suspected terrorists. Civil libertarians in particular have fought hard to have it scaled back or repealed, "To abandon the Patriot Act would deprive asserting that it went too far in sacrificing law enforcement and intelligence officers of individual rights in a rush to ensure that law needed tools in the war on terror, and enforcement had broad powers to identify demonstrate willful blindness to a and track potential terrorists. But even some continuing threat," Mr. Bush said. Republicans who support the White House's desire for robust legal powers for the fight The White House's renewed focus on the against terrorism said the law needed to be issue comes after weeks in which the reviewed carefully, and neither the House independent commission investigating the nor the Senate is scheduled to consider attacks assailed the F.B.I. and C.I.A. - and extending the expiring provisions anytime to some degree the Bush administration - soon. for f ailing to do more to identify and head off the terrorist threat. The commission But Mr. Bush suggested on Saturday that focused attention on a number of opponents of the bill were deluding shortcomings that impeded intelligence and themselves about the degree of the terrorist law enforcement agencies from acting more threat and risked leaving law enforcement aggressively, including a wall that hindered

59 and intelligence officials handcuffed in their raised in recent weeks by the Sept. 11 ability to thwart terrorists. commission hearings.

"Key elements of the Patriot Act are set to "President Bush is clearly fighting a expire next year," Mr. Bush said. "Some defensive battle for the Patriot Act," Mr. politicians in Washington act as if the threat Romero said. 'This comes on the heels o f to America will also expire on that the 9/11 commission and on the heels of schedule." progress seen in Congress by Republicans and Democrats who say that the Patriot Act Among those members of Congress critical went too far." of the act has been Senator John Kerry of Massachusetts, Mr. Bush's Democratic rival But on Capitol Hill, even some Republicans in the presidential race. While supporting want to proceed cautiously. some of the act's main provisions, including those allowing greater sharing of "I think it's important to re-enact the Patriot intelligence and law enforcement Act, but there has to be more balance information, Mr. Kerry has criticized Mr. between enforcement power and civil Bush and Attorney General John Ashcroft as rights," Senator Arlen Specter, the using the legislation to limit civil liberties. Pennsylvania Republican who sits on the judiciary committee, said in an interview on In a statement issued Saturday after Mr. Friday. Bush's remarks, Mr. Kerry said, "The radio address glosses o ver the fact that there h as Mr. Specter said an area of deep concern been more than sufficient legal authority for was a section of the act that gives the F.B.I. intelligence sharing." greater power to demand records from businesses and institutions like libraries. He added, "Senior Bush administration officials simply failed to exercise leadership "There has to be refinement on access to and make certain that their agencies actually library records" before he would support the did cooperate with each other." legislation's renewal, he said. "If you're talking about someone getting access to Anthony Romero, executive director of the books on bomb-making, that's O.K. But I American Civil Liberties Union, a leading don't think they should have carte blanche opponent of the legislation, said he believed on library books." the White House was trying to distract voters from the counterterrorism failings

60 Repeal the Patriot Act

The Wall Street Journal March 10, 2004 Andrew P. Napolitano

Earlier this week when President Bush asked another serious blow. On that day, after the Congress to re-enact the portions of the capture of Saddam Hussein, President Bush Patriot Act that are due to expire at the end signed into law the Intelligence of next year, he provoked a critical review Authorization Act for Fiscal Year 2004. of this controversial law. Those who believe This statute expands the term "financial that our freedoms are guaranteed and cannot institution" so as to include travel agencies be legislated away by Congress remain and car dealers, casinos and hotels, real committed to the repeal - not the renewal - estate and insurance agents and lawyers, of this overreaching legislation. news stands and pawn brokers, and even the Post Office. The Constitution prohibits invasions of privacy by the government by denying it the Now, without you knowing it, the Justice power to engage in unreasonable searches Department can learn where you traveled, and seizures absent a warrant issued upon what you spent, what you ate, what you paid probable cause. Prior to Sept. 11, 2001, we to finance your car and your house, what could actually enjoy that right. But in you confided to your lawyer and insurance October 2001, the Patriot Act changed all and real estate agents, and what periodicals this. In addition to other violations of the you read without having to demonstrate any Constitution which it purports to sanction, evidence or even suspicion of criminal the Act authorizes intelligence agencies to activity on your part. And the government give what they obtain without probable can now, for the first time in American cause to prosecutors; and it authorizes history, without obtaining the approval of a prosecutors to use the information thus court, read your mail before you do, and received in ordinary criminal prosecutions. prosecute you on the basis of what it reads. Even worse, the custodians of the records (Of course, if the government doesn't are now prohibited from telling you that prosecute you, you'll likely never even your records were sought or surrendered. know that it has invaded your privacy.)

This is more than just academic. If the None of this was supposed to have government can get evidence against you happened. The tools Congress gave to from your financial institution under the intelligence agencies are only constitutional guise of national security - i.e., without a when used just for intelligence purposes - showing of probable cause - but use it in a like watching or deporting foreign spies - criminal case against you, then the and only against genuine foreign threats. Constitution's guarantees have been When criminal prosecution is implicated, the shredded. But you know that already. Constitution's protections are triggered.

What most Americans don't know is that on Most Americans don't want the government Dec. 13, 2003, the right to privacy suffered to know of their personal behavior, not

61 because we have anything to hide, but In his famous dissent in Olmstead, Justice because without probable cause, without Brandeis called privacy - which he defined some demonstrable evidence of some as "the right to be let alone" - "the most personal criminal behavior, the Constitution comprehensive of rights and the right most declares that our personal lives are none of valued by civilized men." Brandeis argued the federal government's business. that the framers knew that Americans wanted protection from governmental Government is not reason or eloquence, intrusion not only for their property but also George Washington once said, it is force. for their thoughts, ideas and emotions. That's why we Many have a Constitution: to current members of Congress and the Justice restrain the government's exercise of force Department, it would appear, disagree, since so we can be a free people. Government they have continued their inexorable erosion surveillance undermines freedom because it of this most basic right. is natural to hesitate to exercise freedom when the government is watching and Mr. Napolitano, a judge of the Superior recording. Numerous Supreme Court Court of New Jersey from 1987 to 1995, is decisions have underscored t his b y holding the senior judicial analyst with the Fox that freedom needs breathing room. With the News Channel government's eyes in our hotel rooms, lawyers' offices and mailboxes, freedom will suffocate.

62 The Patriot Act Without Tears

National Review June 14, 2004 Andrew C. McCarthy

extend to national-security intelligence It was m id-August 2 001, the last desperate investigations the same methods that have days before the 9/11 terrorist attacks. long been available to law-enforcement Desperate, that is, for an alert agent o fthe agents probing the vast array of federal FBI's Foreign Counterintelligence Division crimes, including those as comparatively (FCI); much of the rest of America, and innocuous as health-care fraud. certainly much of the rest of its government, blithely carried on, content to assume, Among the best examples is the so-called despite the number and increasing ferocity "roving" (or multi-point) wiretap. As the of terrorist attacks dating back nearly nine telephony revolution unfolded, criminals years, that national security w as little more naturally took advantage, avoiding wiretap than an everyday criminal-justice issue. surveillance by the simple tactic of constantly switching phones-which became especially easy to do once cellphones By October 2001, the world had changed- became ubiquitous. Congress reacted nearly and the USA Patriot Act was passed. So 20 years ago with a law that authorized patent was the need for this law that it criminal agents to obtain wiretaps that, racked up massive support: 357-66 in the rather than aim at a specific telephone, House, 98-1 in the Senate. In the nearly targeted persons, thus allowing monitoring three years since, however, it has been to continue without significant delay as distorted beyond recognition by a coalition criminals ditched one phone for the next. of anti-Bush leftists and libertarian Inexplicably, this same authority was not extremists, such that it is now perhaps the available to intelligence agents investigating most broadly maligned-and misunderstood- terrorists under FISA. Patriot rectifies this piece of meaningful legislation in U.S. anomaly. history. If our nation is serious about On the law-enforcement side, Patriot national security, the Patriot Act must be expands the substance of the wiretap statute permanent; instead, it could soon be made to account for the realities of terrorism. Most gone-and t he disastrous "intelligence w all" Americans would probably be surprised to rebuilt. learn that while the relatively trivial offense of gambling, for example, was a lawful predicate for a criminal wiretap Besides paving the way for agents to pool investigation, chemical-weapons offenses, critical information, Patriot has been the use of weapons of mass destruction, the invaluable in modernizing investigative killing of Americans abroad, terrorist tools to ensure that more information is financing, and computer fraud were not. actually captured. While the critics' Thanks to Patriot, that is no longer the case. persistent caviling misleadingly suggests Analogously, Patriot revamped that these tools are a novel assault on other telecommunications-related privacy rights, for the most part they merely techniques.

63 Prior law, for example, had been written in compel the service provider to produce the bygone era when cable service meant customers' names, addresses, and lengths of television programming. Owing to privacy service-information often of little value in concerns about viewing habits, which the ferreting out wrongdoers who routinely use government rarely has a legitimate reason to false names and temporary e-mail addresses. probe, federal law made access to cable- Patriot solved this problem by empowering usage records practically impossible- grand juries to compel payment information, creating in service providers a fear of being which can be used to trace the bank and sued by customers if they complied with credit-card records by which investigators government information requests. Now, of ultimately establish identity. This not only course, millions of cable subscribers- makes it possible to identify potential including no small number of terrorists-use terrorists far more quickly-and thus, it is the service not only for entertainment hoped, before they can strike-but also to viewing but for e-mail services. thwart other criminals who must be apprehended with all due speed. Such While e-mail-usage records from dial-up subpoenas, for example, have been providers have long been available by employed repeatedly to identify and arrest subpoena, court order, or search warrant molesters who were actively abusing (depending on the sensitivity of the children. The Justice Department reports information sought), cable providers for that, only a few weeks ago, the new years delayed complying with such authority prevented a Columbine-like attack processes, arguing that their services fell by allowing agents to identify a suspect, and under the restrictive umbrella of prior cable obtain his confession, before the attack law. This was not only a potentially could take place. disastrous state of affairs in terrorism cases, where delay can cost lives, but in many other contexts as well-including one reported case in which a cable company Palpably, the Patriot Act, far from declined to comply with an order to disclose imperiling the Constitution, went a long way the name of a suspected pedophile who was toward shoring up the perilous state of distributing child pornography on the national security that existed on the morning Internet even as he bragged online about of 9/11. That is why it is so excruciating to sexually abusing a young girl. note that, despite all we have been through, (Investigators, forced to pursue other leads, we will be transported right back to that needed two extra weeks to identify and precarious state if Congress fails to apprehend the s uspect.) Recognizing that it reauthorize Patriot. Because of intense made no sense to have radically different lobbying by civil-liberties groups standards for acquiring the same instinctively hostile to anything that makes information, Patriot made cable e-mail government stronger-even in the arena of available on the same terms as dial-up. national defense, where we need it to be strong if we are to have liberties at all- Patriot also closed other gaping e-mail Patriot's sponsors had to agree, to secure loopholes. Under prior law, for example, passage, that the act would effectively be investigators trying to identify the source of experimental. That is, the information incriminating e-mail were severely sharing, improved investigative techniques, handicapped in that their readiest tool, the and several other provisions were not grand-jury subpoena, could be used only to permanently enacted into law but are

64 scheduled to "sunset" on December 31, attacks while continuing to fight our forces 2005. Dismayingly, far from grasping the and allies on the battlefield and in eminent sense in making these murderous attacks throughout the world-it is improvements permanent, the alliance of remarkable that elected officials would have Democratic Bush-bashers and crusading any priority other than making the Patriot Republican libertarians is actually pushing a Act permanent. number of proposals to extend the sunset provision to parts of Patriot that were not Mr. McCarthy, who led the prosecution of originally covered. Sheik Omar Abdel Rahman and eleven others in connection with the 1993 World At a time when the 9/11 Commission's Trade Center bombing, is a consultant at the public hearings highlight intelligence lapses Investigative Project in Washington, D.C., and investigative backwardness-and when and a contributor to National Review al-Qaeda publicly threatens larger-than-ever Online.

65 EXECUTIVE PRIVILEGE

Justices' Ruling Postpones Resolution of Cheney Case

The New York Times June 25, 2004 Linda Greenhouse

The Supreme court held Thursday that a procedures that would "accommodate lower court had acted "prematurely" when separation-of-powers concerns." it rejected a request from Vice President to block disclosure of records Two organizations, the conservative Judicial from his energy policy task force. Watch and the liberal Sierra Club, sued Mr. Cheney and his National Energy Policy In a vote of 7-to-2, the court sent the case Development Group to force it to comply back to a federal appeals court, a decision with an open-government law, the Federal that will defer any resolution of the Advisory Committee Act. The lawsuit has politically sensitive lawsuit until after the been stalled at a preliminary phase for more November elections. The lawsuit had the than two years. The pretrial discovery potential to embarrass the administration, dispute that the Supreme Court's decision especially given Mr. Cheney's former role keeps alive was generated by uncertainty as chief executive of Halliburton and the over whether the task force was covered by close ties of other administration members the disclosure law in the first place. to the energy industry. The F ederal A dvisory C ommittee A ct does In telling the appeals court to be ' 'mindful not apply to c ommittees c omposed entirely of the burdens imposed on the executive of federal officials. With its membership branch in any future proceedings," Justice composed of the vice president, six cabinet Anthony M. Kennedy's majority opinion, secretaries and four other government implicitly but not definitively, rejected the officials, the energy task force appeared to Bush administration's position that the vice fall outside the law's coverage. president's activities should not be subject to pretrial discovery at all. Two members of But the plaintiffs argued that officials of the seven-justice majority, Justices Clarence Enron and other private energy companies Thomas and Antonin Scalia, would have had played such an active role in the group's accepted the administration's argument that deliberations that they should be considered the Supreme Court itself should block as de facto members, bringing the task force discovery at this point. within the disclosure law.

The dissenting justices, Ruth Bader The United States Court of Appeals for the Ginsburg and David H. Souter, said the District of Columbia Circuit ruled that the Supreme Court should have permitted the plaintiffs were entitled to enough discovery case to proceed in the district court. In her to show whether that was in fact the case. dissenting opinion, which Justice Souter signed, Justice Ginsburg said the lower As it went to the Supreme Court, the case, courts could have handled the case under Cheney v. United States District Court, No.03-475, was a mix of high-stakes politics

66 and complex issues of federal jurisdiction. It was clear that the justices, while resolving "The need for information for use in civil the jurisdictional questions, were fully aware cases, while far from negligible, does not of the broader context as well. share the urgency or significance of the criminal subpoena requests in Nixon," While the appeals court had ruled that the Justice Kennedy said, indicating that the Bush administration had to include a claim interests to be served in the suit against Mr. of executive privilege as part of any effort to Cheney were much less pressing. block discovery, Justice Kennedy said that was incorrect as a matter of law and not In her dissenting opinion, Justice Ginsburg sensitive enough to the constitutional said there was no indication that the federal . district court would ignore the majority's separation-of-powers concerns as discovery "Executive privilege is an extraordinary proceeded. She noted that the trial judge had assertion of power not to be lightly invited the administration to make specific invoked," Justice Kennedy said, adding, objections and in other ways limit the "Once executive privilege is asserted, government's exposure. She said she would coequal branches of the government are set "allow the district court, in the first on a collision course." A court should instance, to pursue its expressed intention "explore other avenues short of forcing the tightly to rein in discovery" if the executive to invoke privilege," he said. government, instead of resisting all discovery, requested it to do so. While pretrial discovery issues are not ordinarily subject to appeal, "this is not a It could now be many months before the routine discovery dispute," Justice Kennedy lower courts sort o ut t he next phase oft he said. He said the court going back to John lawsuit. The majority suggested that the Marshall had recognized the special position court of appeals might reconsider its of president and vice president. While these precedent holding that private citizens acting officials were not "above the law," Justice as "de facto" members of a government Kennedy said, it did mean that courts should panel can bring the group within the recognize "the paramount necessity of coverage of the disclosure law. protecting the executive branch from vexatious litigation that might distract it Administration officials said that the ruling from the energetic performance of its vindicated their position and protected the constitutional duties." president's ability to seek confidential advice. The appeals court had relied for its analysis in part on the Supreme Court's 1974 Shannen W. Coffin, a former deputy decision in United States v. Nixon, which assistant attorney general, who handled the rejected Nixon's claim of executive case in district court, said that the decision privilege and ordered him to turn over the was a "huge victory for executive Watergate tapes to the special prosecutor. authority" that would help the White House But there were "fundamental differences" regain legal prerogatives in the courts. between the cases, Justice Kennedy said. The Nixon case was a criminal case; this is a At the same time, by returning the case to civil suit. the lower courts, the ruling kept alive for

67 Democrats the secrecy issue they had seized the presumptive Democratic presidential on. nominee, said in a statement.

"George Bush and Dick Cheney have The majority opinion was joined by Chief forgotten that the White House belongs to Justice William H. Rehnquist and Justices America, not Enron, and they owe it to the Sandra Day O'Connor, Stephen G. Breyer public to disclose this information," Phil and John Paul Stevens, who also wrote a Singer, a spokesman for Senator John Kerry, concurring opinion.

68 At the Court, Inflating the White House's Power

The Washington Post July 4, 2004 Joan A. Lukey

On this Fourth of July, it is somehow fitting which the president contends that he does that we are awash in a sea of important not have to turn over, in judicial or other Supreme Court decisions addressing proceedings, evidence concerning his fundamental constitutional issues. Yet, the performance of his executive branch duties. ruling that may prove to be the most critical "Executive powers" are those powers of all seems to be garnering the least assigned in the Constitution to the president, attention. rather than Congress or the courts.

I'm referring to Cheney v. U.S. District In a nutshell, here's what happened: Court for the District of Columbia, the case Throughout the Cheney litigation, the in which two public interest groups are administration took the novel position that it striving to gain access to the records of would not assert "executive privilege" as President Bush's energy task force, chaired grounds for withholding the information by Vice President Cheney. Ten days ago, the sought by the Sierra Club, the liberal high court sent the case back to the Court of environmental group, and by the Appeals for the District of Columbia with conservative Judicial Watch. Instead, the instructions that essentially rewrote 50 years White House insisted on relying on the ofjudicial history. somewhat amorphous (some might even say squishy) notion that the task force You're probably thinking: What on earth is documents were protected because the vice she talking about? In the last week and a president was operating pursuant to his half, we've had decisions on U.S. citizens "executive powers." who are considered enemy combatants and on the rights of Guantanamo Bay detainees. The administration therefore took the How could an opinion with which the position that if it did not assert executive justices put off making a final decision until privilege and the vice president was carrying after the presidential election possibly be so out the duties conferred on the executive by important? Well, think again. With this the Constitution, the documents relating to decision, the Supreme Court has just re- those duties did not have to be turned over - landscaped the constitutional terrain and the courts did not have the right to between the White House and the judiciary review that decision. But is it indeed the in a manner that seems to hand off a portion case that the courts cannot review an of the judiciary's power to the executive executive decision to withhold documents branch. produced in the performance of executive duties? Until the Supreme Court's ruling 10 Understanding the difference between days ago, constitutional scholars would have "executive privilege" and "executive said the answer was clear. If an powers" is the key to understanding the administration wanted to withhold Cheney decision. So bear with me here. information pertaining to domestic policies "Executive privilege" is the doctrine under

69 in the midst of a lawsuit, its only viable invoke a doctrine that would subject the option was to invoke "executive privilege" decision to withhold information to judicial and take its chances with judicial review, review, even regarding matters of domestic meaning the courts would decide whether policy. the privilege was properly claimed. With barely a nod to precedent (except to Only in those relatively rare instances where explain why the Nixon tapes case, which the shrouded information related to defense came out the other way, wasn't similar at or international affairs could an all), the majority endorsed the administration avoid invoking executive administration's position on this point, privilege (and the consequent judicial pretty much lock, stock and barrel. If the review). Those areas were perceived to fall White House wants to withhold information so squarely within a president's powers that when members of the public seek it, the no other branch, including the judiciary in White House may simply do so. No claim of the context of a lawsuit, had the right to executive privilege is required. And if there second-guess the president. (And since suits is a process for judicial review in the pending in our courts are much more likely absence of a privilege claim, I'm not seeing to relate to domestic matters than defense or it. foreign affairs, a president who wanted to withhold documents typically had to assert The history of the doctrine of executive the privilege and await a judicial privilege, coupled with the current determination.) administration's reputation for a lack of openness, casts this decision in a particularly It comes as no surprise that the ironic light. Although the evolution of administration did its darnedest in the executive privilege is generally believed to Cheney case to avoid asserting executive have begun with President Dwight privilege. But, the District Court and the Eisenhower's 1954 dispute with a Court ofAppeals apparently read the same congressional committee investigating the cases that I did, and therefore reached the Defense Department, most of the contextual same conclusion: Energy is a domestic evolution of executive privilege and matter, and it was therefore incumbent on executive powers occurred during the Nixon the vice president to invoke executive years, particularly in the Watergate era. privilege and submit the information being withheld to the courts for review. When President , who was Alternatively, he could simply produce the renowned for his penchant for secrecy, information to the plaintiffs. sought to assert an absolute, non-reviewable executive privilege as justification for The high court clearly disagreed. In one withholding his Oval Office tapes, his quiet little line, on the 20th page of a 21- efforts were thwarted in 1974 by a Supreme page majority opinion, the seven justices in Court that retorted that the president could the majority undid decades of evolving not remove from the Court the "province doctrine with this: "[the Court of Appeals] and duty . . . to say what the law is." Even labored under the mistaken assumption that so, Chief Justice Warren E. Burger was the assertion of executive privilege is a careful to note, the decision requiring Nixon necessary precondition to the Government's to turn over the tapes would likely have been separation-of-powers objections." quite different if the subpoenaed materials Translation: The administration need not had contained "military or diplomatic

70 secrets," for which "the courts have documents related to a domestic issue, has traditionally shown the utmost deference" to ever responded with a claim of executive the president. power. That the Supreme Court has accepted that assertion is stunning. The majority has Almost exactly 30 years later, the court has excused the administration from complying reached the opposite conclusion regarding with the only process that assures the courts the right to withhold documents by an the right of review when an administration administration that some consider as refuses to honor a subpoena and has secretive as Nixon's. I find this particularly accepted the argument that the vice ironic, given the anecdotal evidence that no president was acting under his executive administration has shrouded itself in powers, a realm into which the judiciary executive privilege more frequently, or for a cannot intrude. Against the backdrop of this broader variety of reasons, than has the decision, the question now is this: If the vice current one. One feels compelled to ask: Of president is ordered by the lower courts to all times, why is the court doing this now? reveal documents, will the administration honor such orders? As Boston Globe reporter Anne E. Kornblut wrote on Feb. 11, 2002, "During his first Or, has the balance of power in the realm of year in office, Bush has delayed the release executive secrecy now truly shifted to a new of presidential papers from the Reagan final arbiter? White House, imposed limits on public access to government documents, refused to Joan Lukey is a senior partner at Wilmer share revised data from the 2000 Census, Cutler Pickering Hale and Dorr LLP in and shielded d ecades-old F BI records from Boston. In the 1980s, as a Massachusetts scrutiny." special assistant attorney general, she represented the administration of Michael Make no mistake: The White House's Dukakis in its unsuccessful efforts to assertion of executive powers in the Cheney establish executive privilege in the case i sn ovel. No previous p resident, when commonwealth. confronted with a judicial demand for

71 Refusal to Testify Has Precedent

The Washington Post March 27, 2004 Charles Lane

The White House's refusal to permit dispute over Rice is being played out: the national security adviser Condoleezza Rice court of public opinion. to testify publicly and under oath before -the commission investigating the Sept. 11, 2001, "It depends on the situation and the politics terrorist attacks is not unprecedented in the and the leverage Congress has and how practices of both the Bush administration embarrassing it is for the president not to and previous administrations, according to comply," said Louis Fisher, senior specialist legal analysts and a report by the research in separation of powers at the Congressional arm of the Library of Congress. Research Service.

Presidential advisers and other White House In a letter Thursday to Thomas H. Kean and staff members have on occasion testified Lee H. Hamilton, the chairman and vice about policy matters before congressional chairman of the National Commission on committees since the end of World War II - Terrorist Attacks Upon the United States, but far less frequently than Cabinet Counsel to the President Alberto R. secretaries, who are subject to Senate Gonzales articulated the "principles" he said confirmation. make it impossible for Rice to offer anything more than a second private Whatever their political or other motivations question-and-answer session with the may have been, presidents have generally commission. Rice was interviewed privately, cited the separation of powers, and the need and not under oath, on Feb. 7. for confidential and candid executive deliberations, in explaining their resistance "In order for President Bush and future to testimony by those White House staff presidents to continue to receive the best and members who, like Rice, serve the president most candid possible advice from their and are not confirmed by the Senate. White House staff on counterterrorism and other national security issues, it is important But these distinctions and justifications that these advisers not be compelled to remain relatively undefined and have never testify publicly before congressional bodies been ruled on by the Supreme Court. Such a such as the Commission," Gonzales wrote. court battle would probably occur only if the commission sent Rice a subpoena, as some This is the second time the White House has members have suggested, and she resisted it. taken such a position in an election-year battle over congressional access to a key Historically, clashes over White House staff White House anti-terrorism official. Tom testimony have been settled through Ridge, then the White House's homeland compromise between the executive and security director, refused to testify before legislative branches, with each side vying the Senate Appropriations Committee in for advantage in the same forum where the 2002 but ultimately appeared for public

72 "informal" sessions before two House President Bill Clinton's national security committees. adviser, Samuel R. "Sandy" Berger, testified before a Senate committee President Jimmy Carter's White House investigating the Clinton campaign's appears to have taken a similar position. An fundraising practices in 1996. Berger, as internal 1979 directive advised staffers that deputy national security adviser, testified on they had "immunity" from compelled Haiti policy in May 1994, but that testimony congressional testimony because of was behind closed doors. separation of powers, according to a 2002 report by the Congressional Research So it ultimately may be important whether Service. the current commission, created by Congress to "make a full and complete accounting of The main exception, historically, appears to the circumstances surrounding the attacks, be in cases of alleged wrongdoing. When and the extent of the United States' scandal strikes, White House aides testify. preparedness for, and immediate response to, the attacks" and to recommend Several Nixon White House aides testified ''corrective measures," is conducting a probe before the Senate Watergate committee, as similar to investigations of such scandals. did Carter's national security adviser, Zbigniew Brzezinski, during the Senate's investigation of alleged lobbying by the president's brother, Billy Carter, on behalf of Libya.

73 Charlie McCarthy Hearings

The New York Times April 1, 2004 Maureen Dowd

Following is the text of a letter sent again. In the mystery-guest round, Richard yesterday to Thomas H. Kean and Lee H. Ben-Veniste, Bob Kerrey and other Hamilton of the Sept. 11 commission from Democrats on the Commission will be Alberto R. Gonzales, counsel to President blindfolded. Bush. (Or Mr. Cheney is willing to follow the While we continue to hold to the principles precedent of Garry Moore and Bess underlying the Constitutional separation of Meyerson, using "I've Got A Secret" rules: powers, that the appropriate and patriotic The Vice President will whisper a secret action f or t he C ommission i s to shut d own about the Administration's inadequate and stop pestering us, the President is response to terrorism in the President's ear prepared, in the interest of comity and and each panelist will have 30 seconds to popularity, to testify, subject to the question Mr. Cheney in an attempt to guess conditions set forth below. the secret, which he will not reveal even if they guess right.) The President at all times, even on trips to the men's room, will be accompanied by the As an additional accommodation, the Vice President. President and Vice President have now agreed to take a "pinkie oath," looping little The Commission must agree in writing that fingers with each other, while reserving the it will not pose any questions directly to the right to cross the index and middle fingers of President. Mr. Bush's statements will be their remaining hands and hide them behind restricted to asides on Dick Cheney's their backs. brushoffs, as in "Just like he said," "Roger that" and "Ditto." We must deny your request that Mr. Cheney bring along a PowerPoint presentation Another necessary condition, in keeping depicting who was in and out of the loop, in with the tenets of executive privilege: Mr. accordance with separation-of-PowerPoint Cheney will require that the Commission principles. The Vice President has decreed observe the rules of his favorite show from that the loop of influence is under the cone the Eisenhower Administration, "What's of silence. My Line?" The panelists, in the manner of Dorothy Kilgallen and Bennett Cerf, must The White House is taking the extraordinary try to guess what the President and Vice step of bowing to public opinion - even President didn't know and when they didn't though Mr. Cheney states that he doesn't know it through questions that elicit a give two hoots about public opinion. "yes" or "no." Therefore, the Vice President will only entertain questions about negligence in After 10 "no" answers, the panel will not fighting terrorism concerning the critical be allowed to question Mr. Cheney or period between Jan. 21, 1993, and Jan. 20, anyone else in the Administration ever 2001. As President Bush stated on Tuesday,

74 March 30, the Commission must gain "a thinking that terrorists h ad to be sponsored complete picture of the months and years by a state even as terrorists had taken over a before Sept. 11." state; or why the President went along with the Vice President and the neocons to fool The Vice President will not address any the American public into believing that queries about why no one reacted to George Saddam had a hand in the 9/11 attacks; or Tenet's daily "hair on fire" alarms to the why the Administration chose to undercut President about a coming Al Q aeda attack; the war on terrorism and inflame the Arab or why the President was so consumed with world by attacking Iraq, without a plan to chopping and burning cedar on his Crawford protect our perilously overextended forces ranch that he ignored the warning in an Aug. or to exit with a realistic hope that a 6, 2001, briefing that Al Qaeda might try to democracy will be left behind. hijack aircraft; or why the President asked for a plan to combat Al Qaeda in May and The Commission must not, under any then never followed up while Richard circumstances, ask the Vice President why Clarke's aggressive plan was suffocated by American soldiers and civilians in Iraq are second-raters; or why the President was being greeted with barbarous infernos rather never briefed by his counterterrorism chief than flowery bouquets. on anything but cybersecurity until Sept. 11; or why the Administration-in-amber made Finally, we request that when the President so many cold war assumptions, such as finishes with this painful teeth-pulling visit, the Commission shall offer him a lollipop.

75 President's Privilege; Why Bush Didn't Want Condoleezza Rice to Testify Before the September 11 Commission - and Why She's Going to do so Today

The Daily Standard April 8, 2004 Terry Eastland

To allow National Security Adviser within his rights to assert a privilege to hold Condoleezza Rice to testify under oath back the information. before the September 11 commission today, President Bush had to stand down from a Bush justified his claim, as past presidents claim of executive privilege. Bush was right have, by citing the need for receiving to do that, but let's give the privilege its due. confidential and candid advice from staff members: "A president and his advisers, Bush has described executive privilege as a including his adviser for national security "principle" of separation of powers. That's affairs, must be able to communicate freely an all too brief way of putting it. The and privately, without being compelled to framers oft he Constitution understood that reveal those communications to the there are three kinds of power-legislative, legislative branch." It would be nice to have executive and judicial-and that good a tidy solution when the two branches so government lies in the distribution of at least fundamentally disagree. But the framers the bulk of each kind of power to failed to provide one. Not that they could (respectively) Congress, the president and have, for disputes between branches can't be the courts. governed by rules drawn up in advance. As University of Texas political scientist So in the Constitution, we find the different Jeffrey Tulis has observed, "There is no powers "separated" into branches, with each formula independent of political branch structured in such a way as to enable circumstance with which to weigh such it to carry out its different task. Regarding competing institutional claims." Ordinarily, the two elective branches, the president is to things are worked out through some sort of provide the "energy" that government needs compromise acceptable to both branches. for laws to be administered and-a point relevant at the moment-wars to be fought, In February, the commission interviewed while Congress is to provide the Condoleezza Rice in private. She wasn't "deliberation" required for the enactment of under oath, and the interview wasn't necessary legislation. recorded. When the commission asked her to return for a public interview under oath, The framers understood that the elective the president's lawyers countered by branches might clash. Indeed, you could say offering her for another private interview that clashes between the two are inevitable. that would be recorded and then transcribed After all, a Congress that wants from a and made public. But the commission stood president information that it regards as its ground, and the president yielded. necessary to its legislative task is within its rights to insist that he give it up. And a "Political circumstances" surely affected president who wants to maintain his ability Bush's change of mind. Consider that if to carry out his executive function is equally there is one case in which the national

76 security adviser's public testimony before media appearances in which she sought to Congress is absolutely essential, it would rebut a former counterterrorism aide's have to be the one at hand. For here we have criticism of the administration. Had Rice a body created by Congress and sanctioned stayed off television, the president's by the president himself that's probing what assertion of the need for strictly private went wrong before the communications with his advisers would and what changes should be made. have been more persuasive.

Consider, too, that the commission has When Rice takes her seat today before the demonstrated that it isn't embarked on some commission, the debate will shift from what effort to undermine executive power. In the president's spokesman calls "process" to return for her public, sworn testimony, the "substance" from the dispute over executive commission was willing to agree not to privilege to the issues involving September request any additional testimony of that kind 11. Yet given our g overnment of separated from Rice or other White House aides, nor powers, process questions inevitably will to regard her appearance as setting a return, with this president and this Congress precedent for making future requests for and with future ones. Executive privilege such testimony. will be back.

Though Bush won't concede the point, his Terry Eastland is publisher of The Weekly claim of privilege wasn't helped by another Standard.This articleappeared originally in "political circumstance"-Rice's frequent the Dallas Morning News.

77 Power Plays

The NationalJournal April 17, 2004 Alexis Simendinger

When Condoleezza Rice took her place at I'm not casting aspersions on them, because the bright-red witness table in front of the the dynamics of the moment do have an 9/11 commission last week and raised her impact." hand to take a public oath to tell the truth, the president's foreign-policy adviser Card said Bush was determined, as became the neatly dressed embodiment of president, to undo the damages of the the limits of a president's power to do Clinton era and leave the presidency exactly as he pleases. stronger for his efforts: "The president wanted to restore, not just accept ... the executive authority that presidents had traditionally been able to exercise." In March, to avoid testifying while still counterpunching, Rice had done everything Asserting Power, Whetting Appetites but appear on the Home Shopping Network to defend the White House. Constitutional Bush has had a notable run at flexing his principle began to pale under the TV lights, executive muscles for more than three years. so Bush instructed White House Counsel He took the nation to war in Afghanistan and Iraq and called up the military Reserves Alberto Gonzales and other aides to steer the under his authority as commander-in-chief. administration out of the mess. "We Bush controlled U.S. intelligence about addressed many of the concerns the Iraq's alleged weapons of mass destruction president had," Card said. "It was a and required the nation to trust his instincts compromise that we were not looking for. about the virtues of toppling Iraq's When you have executive privilege, you are government. He declared war on terrorism not looking for an excuse to give it up." worldwide and said he had the sole authority to incarcerate U.S. citizens - most There's a small irony in Bush's embrace of prominently, Jose Padilla - without charge what Card called "the reality" of "the tug of or legal representation, if the government immediate gratification": That's exactly designated them as "enemy c ombatants" in what Bush found disquieting about the that war. reactions of the investigation-plagued Clinton White House to congressional and Bush used the power of his pen to issue independent-counsel demands for all manner executive orders reconsidering some of his of behind-the-scenes staff advice and predecessor's safety and environmental communication to the president. regulations, and he is using the Office of Management and Budget to scrutinize (some As far back as Bush's 2001 transition, "there critics assert OMB is manipulating) the was a recognition, and I think it was kind of scientific rationale for regulating business a sad recognition, that the previous and industry. Bush also used executive administration allowed for the erosion of orders to create new federal offices in some executive authority," Card said. "And response to the terrorist attacks of 2001, as

78 well as a White House office devoted to enemy-combatant challenge). Bush can helping faith-based and community declare that Padilla can be held indefinitely organizations. And when the president in a military lockup because Padilla couldn't get Congress to back his plan to allegedly conspired with a terrorist group, make federal dollars flow to those but the Supreme Court will affirm or deny religiously leaning organizations, he used an that power. executive order to command the federal government to go as far as possible without "The administration has been vigorous in new legislation. reasserting the constitutional powers of the presidency," wrote John Yoo, a former When the Senate blocked confirmation of deputy assistant attorney general under John judicial nominees that Democrats found too Ashcroft in Justice's Office of Legal conservative, Bush used his decree to Counsel, in an e-mail response to a temporarily fill two vacancies on the bench reporter's question. "This extends from the by taking the unusual step of recess- president's war powers, to claims of appointing judges who had been blocked. In executive privilege, to efforts to preserve another matter, the president said he would executive discretion in the operations of rather go to court than allow the General government... Even should the Accounting Office or Congress to compel administration lose these cases, it will still the White House to surrender documents have several achievements to point to in the and other details of his energy task force, effort to restore presidential power, most chaired by the vice president. Bush has also notably in foreign affairs." Yoo, who is now seized on executive discretion to remove or a visiting scholar at the American Enterprise withhold government information from the Institute, offered examples such as Bush's public - with little accountability, as it decision to withdraw the United States from happens - on the basis of national security. the International Criminal Court, and to And Bush has asserted by executive order terminate the Antiballistic Missile Treaty that he, along with former presidents and with Russia, without seeking congressional their heirs or family members, should be approval. able to invoke executive privilege to block the government's release of presidential But if Bush is fond of invoking the long papers under provisions of Watergate-era view on the issue of presidential reform law. prerogatives when it suits his purposes, he is hardly an absolutist, as the investigations Because of Bush's assertive use of his into the terrorist attacks of 9/11 and their unilateral powers during his term, the aftermath have made clear. Perhaps he will constitutionally mandated checks on his regret this course of action. Buying itself authority have come knocking on the Oval short-term tension relief, the White House Office door - via Congress, the courts, and, opted to compromise with the commission in an election year, the voters. On April 27 by allowing Bush and Cheney to testify, and 28, the U.S. Supreme Court is scheduled permitting the commission to privately view to hear oral arguments in three cases that go classified documents of presidential to the heart of the executive's power under briefings, and yielding on the issue of the Constitution: Cheney v. U.S. District allowing the president's national security Court for the District of Columbia (the adviser to testify. energy task force records dispute); Rumsfeld v. Padilla; and Hamdi v.Rumsfeld (another

79 Both Card and Gonzales argue that the find that the president and his aides hoard challenges to Bush's exercise of power are a information when it's to their benefit, or reflection of the constitutional separation of they work to prevent disclosure by not powers, not a unique reaction to Bush's sharing their intentions. leadership. "Every president has had to go through this," said the chief of staff, who has served three presidents. "When I was in the Reagan White House, President Reagan In many ways, congressional Democrats are went through it on Iran-Contra and torn - they're unhappy with Bush's depositions... And then former President penchant for what they consider secrecy, Bush had the same challenges." and they're somewhat relieved that they were cut out of Republicans' Iraq The president's counsel, who was a Texas discussions. If creating a stable democracy Supreme Court judge before Bush brought in Iraq is not an achievable goal, Democrats him to Washington, said history suggests want to distance themselves and their party there has always been a "dance" between the from any unpopular outcome. It's too soon president and Congress about the limits of to write the history of Bush's attack on Iraq, power. "It goes through cycles," said but the president's "my-way" posture Gonzales, known inside the White House as throughout his assault could hurt him if he "the judge." "In this particular point in time, comes to need the friends he previously we have a strong-willed president, we have shunned. an evenly divided Congress, we are in a time of war; and some would say those Angst Over Iraq circumstances lead to, certainly, a either before or perception of a shift to the executive If a public consensus builds, branch." after Election Day, that Bush exceeded his authority only to achieve a failed or tragic "This is not a story about Bush," agrees outcome in Iraq, public outcry might compel William G. Howell, an assistant professor of Congress to adopt new checks on executive government at Harvard University and authority - which would amount to the author of the 2003 book Power Without dramatic undoing of Bush's efforts to Persuasion: The Politics of Direct expand executive authority. This scenario is Presidential Action. "More and more, we see hypothetical, but the aftershocks from presidents acting unilaterally, and that's Vietnam and Watergate loom large as absolutely true of Bush." The downside is lessons. that presidents may find it difficult to drive their legislative agendas through the John Samples, director of the Center for gridlock of an increasingly decentralized Representative Government at the libertarian and partisan Congress, Howell said, but the Cato Institute, said that "one of the things benefit to a president is that when the chief that might come out of [Iraq] is the sense, executive decides to seize the national the idea, that the president has enormous agenda, Congress "has a hard time taking power to take us to war. And if [the decision apart his unilateral action." to go to war] turns out to be wrong or a mistake, then it has to, in my view, usefully Bush has prospered by having a Republican lead us to re-evaluate whether we want that majority of both houses of Congress, but much discretion in a president and whether even some loyal members of his own party

80 we can figure out ways to constrain [future rather than long analysis, his impatience presidents] in an effective way." with recriminations, and his desire to control information by keeping it tightly held - is undercutting public appreciation for that leadership. "I think the president is actually Card discounts the suggestion that Bush's admired for his leadership and maybe not style of leadership and reliance on unilateral always respected for the policy that follows authority - his penchant for swift action it," he conceded.

81 THE SOCIAL CONSERVATIVE AGENDA

A New Meaning for 'Bully Pulpit'

Los Angeles Times April 12, 2004 Susan Jacoby

One of the pious maxims of American Mississippi to a Baptist church. And in the politics for the last 40 years has been that a 1870s, Ulysses S. Grant made what would candidate should never be attacked on be an unthinkable suggestion for a president religious grounds. This stricture is eminently today - that all church property be subject to fair insofar as private faith is concerned. But taxation. when personal faith begins to determine public policy, then the issue becomes fair For nearly all American presidents before game. the current era of political piety, it would have been truly unimaginable to endorse a When John F. Kennedy was running in constitutional amendment dealing with any 1960, he was called on, as the second divisive religious issue. If gay marriage was Roman Catholic to seek the nation's highest not a hot issue in the past, the Constitution's office, to affirm his support for the omission of God was. separation of church and state. In aspeech regarded as a turning point of his campaign, When Abraham Lincoln was approached Kennedy memorably declared, "I do not during the Civil War by Protestant ministers speak for my church on public matters - and demanding that he support an amendment to the church does not speak for me." declare Jesus Christ the supreme government authority, the president cagily President Bush's candidacy deserves the promised to take such action as "my same level of scrutiny - not because of what responsibility to my Maker and our country he might do in the future but because of demands." His action was to take no action what he has already done on behalf of an at all. ultraconservative, mainly Christian constituency that has no qualms about trying The Bush administration, by contrast, has to turn its faith into the law of the land. consistently taken aggressive measures to favor the most conservative religious There is no precedent in American history elements in American society. for the Bush administration's determination to infuse government with a highly specific It is well known that the administration's set of religious values. Thomas Jefferson, a anti-abortion policies are responsible for champion of strict separation of church and restricting embryonic stem cell experiments state even though his private religious in ways that leading scientists believe are beliefs remain a subject of debate, refused already causing the U.S. to fall behind the the request of evangelical religious rest of the world in potentially lifesaving supporters that he issue a presidential biomedical research. But that is only one proclamation of thanksgiving to God for his segment of a wide-ranging assault on secular blessings on America. James Madison policies at every level of government. vetoed a bill to grant public land in

82 Last September, for example, Bush Of even greater importance are the views of announced changes in federal rules - all judicial appointees, who will shape policy accomplished by executive orders long after Bush is gone. Alabama Atty. Gen. circumventing Congress - that allow "faith- William Pryor, recently named by Bush to based" groups to compete with secular the 11th U.S. Circuit Court of Appeals in a organizations for federal funds subsidizing "6recess appointment" bypassing Senate everything from the renovation of churches confirmation, has displayed unabashed to drug rehabilitation. Religious contempt for the Ist Amendment's organizations may now receive tax money establishment-of-religion clause. even if they discriminate against job applicants of other faiths. They may also Pryor was an ardent defender of former promote religious conversions with public Alabama Chief Justice Roy Moore, who dollars. defied court orders to remove a Ten Commandments monument from the state Liberals usually shy away from challenging courthouse. At a pro-Moore rally, Pryor such practices because polls show that 75% declared that "God has chosen, through his of the public supports faith-based funding. son Jesus Christ, this time, this place, for all Christians - Protestants, Catholics and But they - and John F. Kerry - should take a Orthodox - to save our country and save our close look at a 2001 poll by the Pew Forum courts." That statement alone ought to on Religion and Public Life that found that disqualify anyone for a federal judgeship. 80% of Americans disapprove of any tax subsidies for groups refusing to hire workers There is a religious issue facing the country of other faiths, which many of these today: whether, in the 21st century, political evangelical organizations do. Taxpayers leaders will continue to devalue the may like the idea of faith-based funding, but separation of church and state that has been they have serious, practical reservations the glory of our nation since the founders about what specific churches might do with wrote a constitution assigning governmental the money. power not to any deity but to "We the People."

83 A Senator's Call to 'Win This Culture War'

The New York Times September 1, 2004 David D. Kirkpatrick

At a closed, invitation-only Bush campaign to the news media, was the main event rally for Christian conservatives yesterday, sponsored by the campaign for social Senator Sam Brownback of Kansas called conservatives attending the convention. for a broad social conservative agenda notably different from the televised The rally struck a very different tone from presentations at the Republican convention, the speakers behind the lectern inside the including adopting requirements that Republican convention, where talk of pregnant women considering abortions be national unity and cultural inclusiveness has offered anesthetics for their fetuses and been the rule. Last night, Mr. Brownback loosening requirements on the separation of himself spoke on the subject of the church and state. president's compassionate conservatism and efforts to alleviate AIDS. "A fundamental "We must win this culture war," Senator principle of our democracy and our Brownback urged a crowd of several Republican Party is respect for the inherent hundred in a packed ballroom of the dignity, equality and sanctity of every Waldorf-Astoria hotel, reprising a theme of human life," he said from the podium. a speech by Patrick J. Buchanan from the podium of the 1992 Republican convention The difference highlights a balancing act the that many political experts say alienated Bush campaign faces in staging its moderate voters in that election. convention. The spotlight on the party's national convention is a chance to project a Called "the Family, Faith and Freedom welcoming, pluralistic face to moderate or Rally" in e-mail invitations sent to Christian undecided voters. But, anticipating a close conservatives in New York for the election, the campaign has also made it a convention, the event was organized by the priority to motivate the socially conservative Bush-Cheney campaign "to celebrate evangelical Christians among its base to go America and President George W. Bush," the polls. according to a copy of the invitation. The e- mail called Mr. Bush "a conservative leader At the afternoon rally, Mr. Brownback who shares our values, who takes a strong singled out several subjects of special stand for his faith." interest to conservative evangelical Protestants that have been largely omitted Ralph Reed, a senior campaign adviser and from the presentations at the convention, liaison to conservative Christians, also including opposition to abortion and same- addressed the crowd. Several campaign staff sex unions, the plight of Christians and other members, including the deputy political victims of violence in Sudan, human director, Christian Myers, attended, along trafficking, and events in . with Timothy Goeglein, the White House liaison to Christian groups. One invited "I fear for the Republic, I really do," participant said the rally, which was closed warned Mr. Brownback, a favorite of party

84 conservatives. "We are accused of having a But it was Mr. Brownback who laid out radical agenda for saying that marriage is more specific policy goals. On the subject of between a man and a woman and it is the opposition to abortion, Mr. Brownback best way for children to be raised. It is not argued that many women who choose about being hateful. It is about being abortion were unaware of what he said was truthful." the pain the procedure caused a fetus. His call for women contemplating abortions to President Bush, for his part, also opposes be offered anesthetics for the fetus referred legalized abortion and recognizing same-sex to a bill, "The Unborn Child Pain marriage. But he has said he supports the Awareness Act," that he has discussed separation of church and state and the ability introducing in Congress. "We are going to of states to create other forms of recognition keep moving this agenda forward," he for gay unions. He has pointedly avoided vowed. deprecating gay men and lesbians or engaging in talk of a "culture war." Mr. Brownback argued the importance to the culture of appointing more conservative Representatives of the Bush campaign did judges, asserting that courts have conducted not respond to several calls for comment on "a 40-year assault on the Constitution." other aspects ofthe rally. But inane-mail Courts, he argued, had wrongly message to The New York Times, Nicolle overstretched "separation of church and Devenish, the campaign's communications state" to mean "removal of church from director, criticized the newspaper for state." covering an event that "was closed to the press" as "not professional or appropriate." Urging action to alleviate violence in Sudan, A New York Times reporter was invited to he argued that the "strategic interest" of the the event by participants who accompanied United States was ' 'that there are b eautiful him. individuals there suffering, that many of you have prayed for for a long time." Mr. Reed also addressed the crowd, recalling Mr. Bush's response to a question "You are the heart and soul of the party," about his favorite philosopher during the Mr. Brownback said. "And the press hits 2000 Republican primary. "The President you all the time, like there is something said, 'Jesus Christ,"' Mr. Reed recalled. wrong with 'faith, family and freedom."' And amid rousing applause, he repeated Mr. Bush's distinctively evangelical follow-up: Recalling the motto "In God We Trust," "The president said, as only he can say, 'If I Mr. Brownback asked, "Is it still true? I say have to explain it to you, then you don't it is, and I say we fight." understand it."' Before the television cameras inside the Mr. Bush's most important accomplishment, convention, the campaign has relied on a Mr. Reed argued, was greater than any combination of moderate, pluralistic words legislative achievement: "He has returned to and resonant religious atmospherics to us an office that was occupied by George appeal to both moderate voters and Washington, Abe Lincoln, and Ronald conservative Christian at once. On the first Reagan. He has restored the honor and night of the convention, for example, dignity of the highest office in the land." Senator John McCain praised Islam as an

85 honorable religion - a statement many to vote Republican, to help Mr. Bush come evangelical Christians consider heretical - out ahead. and two Muslim speakers invoked Allah from the stage. Yesterday, Mr. Reed urged the crowd at the Waldorf to do everything possible to ensure But at times the staging of the evening Mr. Bush's re-election, especially reaching resembled an evangelical Protestant church out to acquaintances at their "churches, service. Personal testimonials from the veterans halls and rotary clubs." In the last widows of Sept. 11 victims with heartfelt election, he warned, "we got out-hustled the allusions to prayer were followed directly by last weekend." a performance of the hymn "Amazing Grace," and other performances have Other Christian conservatives at the included a Christian rock group, a church convention were already doing their part. At choir from Queens and the Boys Choir of a hotel near the convention, the independent Harlem. film production company, Grizzly Adams Productions, was screening a film dedicated Calibrating its appeals to both conservative to reaffirming Mr. Bush's credentials as a Christians and more secular or socially sincere evangelical Christian and to liberal voters is a longstanding challenge for criticizing the separation of church and state. the party. Although Mr. Buchanan's 1992 speech may have alienated moderate voters A recurring theme of the film is that Mr. by taking aim at the popular culture, Bush's opponents dislike him mainly political advisers to Mr. Bush believe his because of his forthright faith. "The notion 2000 campaign failed to adequately that our leaders should have God in their life mobilize conservative Christian v oters. M r. has suddenly become threatening," a Bush's political adviser, Karl Rove, has narrator says. often said that conservative Christian turnout in 2000 was about four million votes "Will the faith of George Bush be sufficient below his projections in the last elections, to keep us in God's hands today?" the film and anticipating another close race they are concludes, "Perhaps if we all join our faith counting on regular churchgoers, who tend to his."

86 Winning While Losing

The New York Times July 15, 2004 Richard W. Stevenson

From the beginning, gay marriage has been Wednesday. But the way in which the an issue that President Bush has tried to proposal went down with a whimper - short finesse. of a simple majority, much less the two- thirds of the Senate needed for approval - Under election-year pressure from his social raised questions about whether the White conservative base, Mr. Bush endorsed the House had fundamentally misjudged the effort to adopt a constitutional amendment nation's attitude on the issue. And the vote that would ban gay marriage. In the last few left even some of Mr. Bush's own advisers days he has turned up the volume on the wondering if his backing of the amendment issue, talking about it in his weekly radio did not hurt him politically more than it address on Saturday and calling wavering helped by further stoking opposition to him senators over the last day or two in an effort from the left. to shore up support for the measure as it headed toward a crucial procedural vote on "It's a net loss for Republicans politically," Wednesday. said one prominent Republican in Washington who works closely with the But after endorsing the measure in February, White House. "It does nothing for our base, he would often go weeks without because they're grumpy about not having it, mentioning it in public, suggesting either a and it energized a significant portion of their personal or political reluctance, or both, base. I guarantee you that the gay about pushing it too hard. And when he did community will give twice as much money raise the topic, he was careful to modulate and work harder for Kerry now, not so much his message to avoid alienating moderate because they care about marriage per se, but voters, warning in particular against because this effort plays to their fears that allowing the issue to become an excuse for we're homophobic." gay bashing. While polling has generally found that most "What they do in the privacy of their house, Americans are opposed to gay marriage, it consenting adults should be able to do," Mr. has also shown that few people see the issue, Bush said during a campaign stop in or the proposal for a constitutional Pennsylvania on Friday, seeking to amendment that would define marriage as distinguish between private behavior and being only between a man and a woman, as giving legal sanction to same-sex marriages. being a priority for the country. Polls and "This is America. It's a free society. But it focus groups have repeatedly found that the doesn't mean we have to redefine traditional subject barely registers with voters, if it marriage." registers at all, at a time when most people are primarily concerned with Iraq, terrorism By hedging his position, if only a bit, Mr. and jobs. Bush may have insulated himself somewhat from the sting of the defeat the proposed But wading into the issue was in keeping amendment suffered in the Senate on with the White House's overriding political

87 priority, keeping Mr. Bush's base happy and In a statement issued by the White House, energized, even at the risk of alienating Mr. Bush said he was "deeply moderate and swing voters who might see it disappointed" that the amendment had been as anti-gay. "temporarily blocked" in the Senate, and he urged the House to take it up. It also provided an opportunity for the White House to maneuver Senator John Kerry into Some Republican strategists said the focus a position where it could again accuse him on the issue was part of a temporary of taking both sides of an issue, the central diversion into a broader battle over values theme in its effort to portray Mr. Kerry as so between Mr. Bush and Mr. Kerry before the lacking in conviction that he would be an campaign returns to the defining issues of unreliable leader. Mr. Kerry has said he the election - Iraq, terrorism and the opposes gay marriage, but he also opposed economy. the amendment, largely on the grounds that the issue was one for states to decide. But other Republican strategists said that in an election that is as likely to be decided by In the end, neither Mr. Kerry nor his running how successful each party is in getting its mate, Senator John Edwards, voted. But Mr. loyalists to go to the polls on Election Day Bush appears to have been more successful as by their appeals to swing voters, gay in convincing social conservatives that he is marriage is proving to be a powerful issue steadfastly with them on the issue. that will not fade.

"This is where you see President Bush "To what I would call the moralist portion taking a political risk," said Deal W. of the president's base, this issue has Hudson, an informal adviser to the White become in some ways the new abortion," House and the publisher of Crisis, a said Tony Fabrizio, a Republican pollster. conservative Catholic magazine. "I think he "It generates passion." knew there would be fallout among the swing voters who respond to the perception James Thurber, director of the Center for of political leaders being moralistic in their Congressional and Presidential Studies at stands. Given that he knew that, for him to American University, said Mr. Bush had support the amendment to the degree he has used the issue skillfully to reassure is evidence of his conviction." conservatives without alienating voters in the center. Mr. Bush won a big round of applause at a campaign rally in Wisconsin on Wednesday "It was a classic way to appeal to the when he alluded to the "debate" in conservative values base, knowing full well Washington over the subject. "I believe that that it wouldn't pass but that he would still a traditional marriage - marriage between a get credit," Mr. Thurber said. "He can say man and woman - is an important part of it was the first step, and that he is on the side stable families," he said. of his base, but he is not making it a major strategy, theme and message of his campaign nationally."

88 George W., Judicial Activist

Slate Magazine February 25, 2004 Timothy Noah

Q: So if a state were voting on gay marriage, activism while at the same time practicing it. you would suggest to that state not to On the one hand, Bush wants to curse the approve it? judiciary because it's mainly judges who have pressed for recognition of gay civil A: T he s tate c an do what they want tod o. unions and/or marriages. (Even in Vermont, Don't try to trap me in this state's [rights] the first state to enact a civil-union law, issue like you're trying to get me into. In my legislators didn't act until a state Supreme state of Texas, if we tried to have gay Court ruling compelled them to.) Everything marriage, I would campaign against it. was fine until some activist judges and local officials made an aggressive attempt to Candidate George W. Bush, in a presidential redefine marriage. In Massachusetts, four debate moderated by Larry King in judges on the highest court have indicated Columbia, S.C., Feb. 15, 2000 they will order the issuance of marriage licenses to applicants of the same gender in Peter Singer cites this exchange in his new May of this year. After more than two book, The President of Good and Evil: The centuries of American jurisprudence, and Ethics of George W. Bush, in order to millennia of human experience, a few judges demonstrate the hypocrisy of Bush's and local authorities are presuming to subsequent support for a constitutional change the most fundamental institution of amendment banning gay marriage (which civilization. Bush formalized today). No genuine advocate of small government would seek to Hoping to prevent this, Congress had in take from the states the right to decide 1996 passed the Defense of Marriage Act, whether people of the same sex can marry, written by the thrice-married Rep. Bob Barr, Singer observes. Singer is an awkward ally R-Ga., and signed cravenly into law by the for the gay rights movement, given his past adulterous president whom Barr was bent on support for interspecies sex (which destroying, Bill Clinton. The law defined prompted this dissent from Chatterbox and marriage as a legal union between one man this somewhat more thoughtful reply from and one woman as husband and wife and Slate's William Saletan). But this time out, said no state could be forced to grant legal the Princeton bioethicist's logic is recognition to a same-sex marriage in unassailable. Bush is a fair-weather another state. Thirty-eight states passed federalist. similar laws. Bully for them, Bush says: On a matter of such importance, the voice of the In his remarks explaining his endorsement people must be heard. My administration of t he a mendment, B ush also demonstrated will vigorously defend this act of Congress. that he's blundered into a second type of hypocrisy as well, denouncing judicial

89 If the voice of the people must be heard, by activist courts. In that event, every state though, what else need Bush do? The state would be forced to recognize any laws, and the question of whether or not relationship that judges in Boston or state courts will uphold them, are none of officials in San Francisco choose to call a Bush's business, because he opposes marriage. F urthermore, even if the Defense Washington meddling in local affairs. At the of Marriage Act is upheld, the law does not federal level, Congress in its wisdom has protect marriage within any state or city.For spoken and enjoys Bush's unqualified all these reasons, the Defense of Marriage support. requires a constitutional amendment.

But that isn't good enough for the religious Those damned activist judges! They're so right, which is disaffected with the Bush powerful that they've got me doing what administration and may conceivably support they want before they even tell me to! a third-party challenge to Bush's presidency. So Bush must support the constitutional If Bush really believed marriage was amendment, too. something to be decided legislatively, he'd wait until a judge struck down the statute He is doing this, Bush explains, because the before waving the white flag on its Defense of Marriage Act, that righteous and constitutionality. And he'd certainly avoid democratic expression of the people's will, dictating what any state or city should do. is, um, unconstitutional: That's what Barr, now retired from Congress, is doing. The Constitution is no The Constitution says that full faith and place for forcing social policy on states, credit shall be given in each state to the especially in this case, he's said. public acts and records and judicial proceedings of every other state. Those who Instead, Bush is doing the courts' work for want to change the meaning of marriage will them, declaring the Defense of Marriage Act claim that this provision requires all states unconstitutional while at the same time and cities to recognize same-sex marriages portraying himself as judicial activism's performed anywhere in America. victim. He's like Cleavon Little in that scene from Blazing Saddles where he whips out Note the grudging and exaggeratedly his gun and takes himself hostage. In fact, passive will claim. Hey, he's saying, if it it's his fundamentalist supporters who've were up to me, I'd leave well enough alone. taken Bush hostage, and they couldn't be Unfortunately, those interfering judges just less interested in helping Bush remain might agree that the Defense of Marriage consistent about the proper role of the Act really can't be squared with the federal government. The only real belief Constitution. And that leaves me no choice animating this political discussion is the but to capitulate: bigoted one that homosexuality is an abomination. President Bush may not [T]here is no assurance that the Defense of subscribe to that belief, but he's more than Marriage Act will not, itself, be struck down happy to cater to it.

90 The Politics of Piety; Bush's Public Religiosity Connects with America - and That Will Win Him Votes

Los Angeles Times July 11, 2004 Charlotte Allen

It's a meme typically favored by liberal, And in a review of several books on the Democratic-leaning pundits: Religion - or president's family for the current New rather, the public expression of religious Yorker magazine, David Greenberg belief in political life - is dangerous to contends that because the inspiration of God America. The idea's propagators are usually and the Bible "is purely personal or talking specifically about President Bush, an subjective, it's not open to debate - and unabashed Christian who lards his speeches decisions based on it become immune from with biblical allusions and once declared scrutiny." In other words, it's downright that Jesus Christ was his favorite political undemocratic for the president to mention philosopher. God in public.

In a column titled "Bush's God" in this There's an obvious response to Greenberg's month's American Prospect magazine, argument: Given that we've got a Robert Reich, secretary of Labor during the presidential election in November, offering Clinton administration, declares that religion voters a chance to boot out the Bible- is a graver threat to America than terrorism. thumping president if they wish, where's the Reich predicts that the great battle of the threat to democracy? 21st century won't be between terrorists and the West but between "those who believe in But that's beside the point, which is: the primacy of the individual and those who Although the Constitution explicitly requires believe that human beings owe their separation of church and state, most allegiance and identity to a higher authority Americans don't mind - indeed many ... between those who believe in science, demand - that their president not only honor reason and logic and those who believe that religious faith, an American hallmark, but truth is revealed through Scripture and function in some sense as a religious leader. religious dogma." Bush's predecessor, Bill Clinton, who did not strike most observers as devout, carried Reich isn't the only one anxious about his Bible to a Washington church nearly religion invading politics. Last year, Barry every Sunday morning while president. And Lynn, executive director of Americans Sen. John F. Kerry favorably mentions his United for Separation of Church and State, Catholic faith, despite his opposition to his complained that Bush was sending a secret church's moral teachings on abortion. It is message of solidarity to fellow Christians safe to say that no one who possesses when he used the phrase "wonder-working Reich's level of hostility to religion is likely power" - taken from a Christian hymn - in a to be elected president soon. sentence praising Americans' faith and idealism in his State of the Union address.

91 This is not just "ceremonial deism," the effect contend that religion has no relevance purely formalistic civil religion that Justice to public life. This notion fatally trivializes Sandra Day O'Connor discussed in her religion by treating it as essentially concurring opinion in the Pledge of meaningless. Allegiance case. It is a genuine civil religion, lending credence to G.K. More important, religion recognizes there is Chesterton's observation that America "is a inherent meaning, order and purpose in the nation with the soul of a church." About universe. It thus induces humility, a 83% of Americans define themselves as recognition that our puny ideas about how Christians, and nearly all believe in a deity. things are and ought to be may not be the True, only 38% attend weekly religious final word. The horror of 20th century services, according to an ABC News poll in totalitarianism was the insistence of 2002 - but that's startlingly high for a First atheistic, militantly secularist intellectuals, World nation (and observers say it leaves from Germany to Russia to China to Cuba, out the millions who attend church, but less that they had a right to impose their pet frequently). utopian schemes at the point of a gun or threat of the gulag. Professing "allegiance ... Paradoxically, contends Baylor University to a higher authority," as Reich puts it, is a sociologist Rodney Stark, America owes its check on such murderous egotism. high level of religious intensity to the separation of church and state. In contrast Most Americans believe that God orders the with Europe, with its fading government- universe, and so they resonate to supported churches, "We have a competitive declarations that this is true. Ronald religious economy here, where churches Reagan's popularity rested in part on his have to work to get members," Stark says. religious faith. Many people who would never vote Democratic admired Al Gore's Not surprisingly, religion - Christianity and running mate in 2000, Sen. Joe Lieberman, Judaism, in particular - fueled both the for his observant Orthodox Judaism. In antislavery movement of the 19th century politics, it never hurts to represent your and the civil-rights movement of the 20th. constituents. So why shouldn't Bush - or The leaders of both movements didn't Kerry, or any other politician or president - hesitate to quote Scripture to remind their declare openly the extent to which religious listeners that what they stood for was beliefs inform his positions and policies? morally grounded in the Bible, as well as in secular philosophy. Religion was not only a The problem isn't really religious beliefs or "purely personal" matter but also one of religion per se, but the deep American grave public import. cultural divide over moral issues - abortion and gay marriage are the most contentious - That is as it should be. Religion, by nature, informed by religious beliefs, and that a is a public thing, because it acknowledges a sizable voting bloc, evangelical Christians, reality that is outside the private realm of the shares many of Bush's beliefs. Bush's inner heart. Individuals' faith and religious religiosity frightens the Reichs of this world, experiences are private matters, but religion not because it promises theocratic tyranny, itself, whether it be Wicca, Buddhism or but because it speaks to a specific world Roman Catholicism, is shared and view shared by millions of other Americans. communal. Those who would banish If Bush happened to invoke Jesus in the religion to the realm of the strictly private in name of, say, abortion rights or nuclear

92 disarmament, we would not be hearing lectures from intellectuals on the dangers of religion.

Religious people, certainly Christians, have over the centuries committed many a mortal wrong in the name of their faith. But those wrongs pale in comparison with the mountains o f corpses generated by t he t wo most ghastly 20th century experiments in turning governments over to irreligious intellectuals and social theorists - Nazi Germany a nd t he S oviet Union - a nd t heir bloody epigones, some of which are still around today. There is some value to the humility inherent in deferring to something, or Someone, beyond yourself

93 Look Left

The New Republic March 15, 2004 Jonathan Chait

"With President Bush's embrace yesterday President Bush has done just that. [. . .] His of a marriage amendment, the impassioned endorsement on Tuesday of a compassionate conservative of 2000 has constitutional amendment banning same-sex shown he is willing, if necessary, to rekindle marriage, after weeks of intensive lobbying the culture wars in 2004," began a front- by social conservatives, was the culmination page story in The Washington Post last of this rapprochement. But will he pay a week. The sentence betrays an assumption price with the centrist voters who so often that has characterized most of the coverage decide presidential elections, as the of the gay marriage debate: that the culture Democrats hope?" USA Today chimed in, wars are being "rekindled" not by those who "Bush's support of a proposed amendment are revolutionizing the way society thinks had long been sought by conservative about gay rights and marriage but by those Christians, who are among the Republican who stand in their way. For many in the Party's most loyal supporters." And the Post media, that is, efforts to expand gay rights story quoted above asserted, "So when gay simply constitute progress; efforts to arrest marriages advanced in Massachusetts and that expansion constitute culture w ar. (You San Francisco, Bush felt a need to respond see a similar dynamic in the way the press to the cries of social conservatives-even if it uses the phrase "class warfare"-i.e., not to meant losing some swing voters he needs in describe those who want to redistribute November." wealth upward but, rather, to their critics.) In both cases, the coverage is a function of the But what if Bush's support for the kind of people-affluent, educated, and amendment banning gay marriage is not just secular-who tend to work in the national a sop to his base but a way of appealing to media. Indeed, press coverage of the gay swing voters? I should say here that, for my marriage d ebate o ffers a p erfect case s tudy part, I believe gays should have the right to of the degree to which journalists' marry, and I find the amendment morally socioeconomic assumptions influence their abhorrent. But I'm far less confident than reporting. others in the press that most Americans share my view. The operating premise of most of the recent news coverage has been that Bush's support When you look at the polling data, you for a constitutional amendment banning gay discover that Americans are divided even on marriage is an extreme move that may the legality of gay relationships-not satisfy his conservative base but risks marriages, mind you, just relationships. alienating voters in the middle. "It's a When asked by a CNN/USA Today/Gallup cardinal rule of politics," The New York poll last July if "homosexual relations Times declared in a front-page story last between consenting adults should or should week. "Pay attention to the party's base. In not be legal," "should" edged out "should recent weeks, on a variety of fronts, not" by just 48 to 46. An identically worded

94 question, posed by a CBS/New York Times a similar (51 to 42 percent) result. And, poll in December, resulted in just 41 percent when CBS changed the wording to describe replying yes and 49 percent no. the amendment as "allow[ing] marriage ONLY [emphasis original] between a man Unsurprisingly, the public rejects gay and a woman"-without explicitly saying it marriage by a far wider margin. Last month, would ban gay marriages-support grew to the Annenberg Center conducted a poll 59 to 35 percent. So there's no majority asking, "Would you favor or oppose a law in opposed to the amendment, and there may your state that would allow gays and well be a majority who support it, perhaps lesbians to marry a partner of the same sex?" even a substantial one, depending upon how Thirty percent said they favored it; 64 the issue is framed. percent opposed it. This finding is pretty typical: In most polls, about one-third of Needless to s ay, this is not the p icture one respondents favor gay marriage, and two- gets from media accounts of the thirds oppose it. controversy, which have tended to focus on the possibility that Bush's support for the Support for amending the Constitution- amendment will cost him among swing which people are generally more reluctant to voters. As this week's Time magazine do t o-is naturally I ower. B ut, here t oo, t he contends, "Many swing voters are also the results are at best ambiguous. Only one poll suburbanites who abandoned the GOP in the has shown a plurality opposed to the past when it got too wild-eyed about culture amendment. That was the Annenberg poll, wars." This may be true as far as it goes. But which found opposition by a 48-to-41 the voters that Time is referring to-i.e., margin. But this was an anomalous result, upperincome, socially moderate, probably deriving from the wording of the economically conservative folks-don't make question, which described the amendment as up the entire swing vote or even the largest "saying that NO [emphasis original] state portion of it. A larger bloc of swing voters can allow two men to marry each other or has essentially the opposite sensibility- two women to marry each other." A few culturally traditional and economically other polls have found public sentiment populist. "The greatest bloc of contested evenly split: A February Time/CNN poll voters watching politics from a distinct resulted in 47 percent supporting the perspective is noncollege and blue-collar amendment versus 46 percent opposing. An America," writes Democratic pollster ABC News/Washington Post poll found 46 Stanley Greenberg in his new book The Two percent in favor and 45 percent opposed. Americas. "These are the voters for whom church and faith are important and who Moreover, polls that measure support for the think values and family are under pressure amendment without mentioning the too." alternative of letting every state decide for itself produce consistent support. A These downscale swing voters are February Gallup poll asked, "Would you substantially more likely to support an favor or oppose a constitutional amendment amendment banning gay marriage than the that would define marriage as being between more libertarian suburbanites Time focuses a man and a woman, thus barring marriages on. A nd, while m ost of the recent polls on between gay and lesbian couples?" Among gay marriage are not broken down into respondents, 53 percent supported it, and 44 useful demographics, such information as percent opposed it. CBS's February poll had there is supports this assumption. The

95 Annenberg poll-which, again, was an outlier dwell, gay marriage is an increasingly in showing overall opposition to the mainstream proposition. Unfortunately, in amendment-shows voters with advanced most of the country, it's not. And, even if degrees overwhelmingly opposed to the the media doesn't realize this, it's a good bet amendment and all others essentially split. Karl Rove does.

It's not hard to understand why the national media fails to grasp the continued strength of cultural traditionalism: In Washington and New York, where many journalists

96 THE SUPREME COURT AS AN ELECTION ISSUE

Fighting Over the Court It's Tough to Make the Supreme Court into an Election Issue

The Legal Times October 9, 2000 William G. Ross

There are signs that the U.S. Supreme Court an issue that actually may have swayed may be emerging as a significant election votes. Even in those elections, the issue's issue for the first time in more than 30 years. impact remains uncertain. During the televised debate between George W. Bush and Al Gore last week, both In 1924, campaigning as a third-party candidates discussed the criteria they would Progressive nominee, Sen. Robert LaFollette use in making judicial nominations. With of Wisconsin attacked the Supreme Court the retirement of more than one justice for its decisions striking down social and likely during the next several years, and with economic regulatory legislation, and the Court closely divided on many proposed allowing Congress to override the controversial issues, Democrats and Court's decisions by a two-thirds vote. H is Republicans agree that the upcoming campaign withered, however, when election could have a critical impact on the President Calvin Coolidge and his fellow Court's direction. Republicans vigorously accused LaFollette of seeking to sabotage constitutional If history is any guide, however, judicial government. (Republicans made a similar issues will produce much campaign b luster charge with much less effect against but will affect few ballots. President Franklin Roosevelt during the 1940 campaign, in an attempt to exploit UncertainImpact popular opposition to Roosevelt's unsuccessful 1937 Court-packing proposal.) A long and largely forgotten line of presidential candidates and political activists The decisions of the Warren Court- have attempted to make the federal courts a particularly those involving the rights of decisive issue in many presidential elections criminals, school prayer, and during the past century. Their efforts have reapportionment-were prominent in both the nearly always failed: The courts are not 1964 and 1968 elections. In 1964, institutions that ignite the passion of voters. Republican nominee Barry Goldwater Bob Dole learned this lesson in our last frequently attacked these decisions and presidential election, after voters responded promised to make more conservative with indifference when he attacked Clinton- appointments to the Court. During the 1968 appointed federal judges for allegedly campaign, after the Warren Court had coddling dangerous criminals. continued to expand criminal rights in the wake of a major increase in crime, both Only three times-in 1924, 1964, and Richard Nixon and George Wallace 1968-has the federal judiciary emerged as repeatedly promised to appoint justices who

97 would be more solicitous of what Wallace which run the gamut from conservative to called "law and order." Discontent over the moderate to liberal. In this environment, Court's decisions may have helped Nixon Democrats must w am a bout the perils of a win his close race against Hubert conservative take-over of the Court, a stance Humphrey. that is less likely to capture voter enthusiasm than a call to reverse the Court's direction. There are indications that the Court is more prominent in this year's election than it has As in previous elections, moreover, the been since 1968, with 36 percent of voters in impact of the Court issue also may be muted a recent poll indicating that they because the issue is often little more than a regard Supreme Court appointments as a reflection of how voters already feel. about significant election issue. Democrats are candidates. For example, a voter whose attempting to cultivate this issue by warning support for Gore is based largely on his or voters that the fate of abortion rights, her perception that Gore is more pro-choice affirmative action, gun control, and gay than Bush is not likely to prefer Gore more rights all hinge upon judicial appointments merely because Gore may be more likely that the next president is likely to make. than Bush to appoint pro-choice judges to Meanwhile, Republicans may be more the federal courts. hesitant to discuss the Court, possibly because they fear their judicial preferences In an era of low voter turnout, however, the will risk alienating moderate voters. judicial issue may motivate some voters to show up at the polls because they perceive Even so, judicial issues are unlikely to have that judicial appointments raise the stakes of much direct impact on the election. There the election. The prospect of upcoming are several reasons for this. First, many of Supreme Court nominations also stimulates the most significant and divisive issues that political activists to greater commitment and confront the Court are too abstruse for most provides an incentive for fund raising. The voters to grasp. For example, few voters are People for the American Way, for example, likely to comprehend the subtleties of the has issued a 78-page report entitled Courting Court's recent division over profound issues Disaster, which warns about the dangers of of federalism. Even those voters who know "a Scalia-Thomas Supreme Court." that the Court recently shielded states from lawsuits arising under the federal age The issue of judicial appointments also may discrimination statute are unlikely to fathom be attaining more prominence in presidential the Court's complex interpretation of the elections because the increased scrutiny of 11th and 14th amendments in its decision. judicial candidates has reduced the traditional risk that judges will defy the Moreover, the Court itself today is not a expectations of the presidents who appoint subject of unusual controversy, in contrast to them. Of course, there will always be a high past elections when the judiciary emerged as degree of unpredictability in judicial a major issue. Since the present Court is performance. As the late Yale Law difficult to peg as "liberal" or Professor Alexander Bickel once observed, "conservative," the general direction of the "you fire an arrow into a very distant future Court no longer provides a lightning rod for when you appoint a Justice." The criticism. Controversies instead revolve performance of judges today, however, is around individual decisions of the Court, more predictable because candidates for the

98 Supreme Court as well as the lower courts political divide demonize individual judges receive far more intense scrutiny both during and justices.) Nearly everyone seems the presidential nominating process and content to allow the Court to exercise vast Senate confirmation proceedings. Of course, powers, either because they support such even now the process is not flawless-when powers or because they recognize the President Bush appointed David Souter to political impracticability of reining them in- the Court, he surely did not expect the new which would include measures such as justice to become so liberal. abolishing life tenure, abrogating judicial review, curbing jurisdiction, or The importance of judicial issues , in this implementing any of the other remedies year's elections also reflects a growing widely advocated by two-fisted critics of sophistication about the Court. The highly judicial power until relatively recent times. publicized brawls over the 1987 Bork nomination and the 1990 Thomas The issue today, therefore, is not the validity nomination helped to stimulate greater of judicial power itself, but rather who will awareness of the Court, as have improved exercise that power. In a variation on the old news coverage of judicial issues and the adage "if you can't beat them, join them," growing ubiquity of legal issues in voters and politicians of all persuasions American life. Although polls consistently today seek to elect presidents and senators show that few voters pay careful attention to who will appoint judges who will serve their judicial decisions and that even the names of agendas. Although few votes may pivot on most of the justices are unknown to the judicial appointments, voters are rightly overwhelming majority of Americans, few giving more consideration to the types of voters are unaware of the Court's vast power judicial nominations that the next president to affect significant public issues. Voters will make. seem to understand generally that the Court can affect such highly charged issues as abortion, school vouchers, school prayer, and violence against women. Many voters also recognize that Supreme Court appointments are likely in the near future because of the average age of the justices.

Unanimity on Validity

The debate over the Court this year also helps to underscore the resilience of public respect for the Court and acceptance of the Court's power to review the constitutionality of state and federal legislation. In contrast to the virile populist attacks on judicial power in so many campaigns of yesteryear, no major candidate or political movement today questions the validity of judicial review or attacks the Court as an institution. (Of course, politicians on both sides of the

99 Bush's Justice

The Weekly Standard Monday, June 23, 2003 Terry Eastland

President Bush may or may not get the previously left to the people. The Rehnquist opportunity to name a Supreme Court Court has not only declined to overrule Roe Justice this summer. But if he does, who but also reaffirmed it in the 1992 case of would be the right choice? Bush himself has Planned Parenthood v. Casey. Too many told us. In 1999, Fred Barnes asked Bush times the Rehnquist Court, notwithstanding what kind of judge he'd select. "I have great its dominance by appointees of Republican respect for Justice Scalia," he said, "for the presidents, has regarded Supreme Court strength of his mind, the consistency of his precedents like Roe as sacrosanct, placing convictions, and the judicial philosophy he them above the Constitution itself. Against defends." There you have it. Someone like the anti-constitutional tendency of judicial Scalia, assuming all other qualifications are supremacy, Justice Scalia, joined by Justice met, would be the best choice for the Court. Clarence Thomas, has consistently dissented. In fact, we'd drop the word "like" in thinking about who should replace Chief Fortunately, for a Court that needs judges Justice William Rehnquist, were he to step who will abide by the Constitution, there is down. In that case, Scalia would be the no shortage of qualified people who would logical choice, assuming he is willing to be available for appointment. They include take the center seat. And then, of course, appellate judges Sam Alito of the Third Bush could backfill with someone like Circuit, J. Michael Luttig and Harvie Scalia. Likewise, if John Paul Stevens or Wilkinson III of the Fourth Circuit, Edith Sandra Day O'Connor-next to Rehnquist, Jones of the Fifth Circuit, Danny Boggs of the oldest and longest-serving justices-were the Sixth Circuit, and Michael McConnell to leave the Court, Bush will surely want to of the Tenth Circuit. We'd add to this (non- select a replacement who shares Scalia's exhaustive) list two individuals who aren't judicial philosophy. judges-Solicitor General Theodore B. Olson and Sen. Jon Kyl of Arizona. We commend to Bush his own standard, not simply because he articulated it but because Will Bush choose an Alito or a Luttig or an the Court needs more judges like Scalia. On Olson? His generally excellent choices for race, religion, criminal justice, and national the circuit courts suggest he might. But it's power, the Rehnquist Court is an hardly a sure thing. He might be tempted improvement on the Burger Court, which simply to "trade up"-to get someone who is was only slightly better than the Warren better at the margins than, say, Stevens, the Court. Yet the Rehnquist Court has in lone Ford appointee who long ago joined important respects been a disappointment. the Court's liberal bloc. Or better than Consider Roe v. Wade, the 1973 decision O'Connor, Reagan's first appointee who that invented the abortion right, thus often votes with Scalia and Thomas (and destroying self-government on an issue Rehnquist and Justice Anthony Kennedy),

100 but whose opinions sometimes lack a rule of blank slate but a jurist of whom the most law clear enough to provide useful partisan Democratic president could be guidance. Simply to trade up, however- proud. unless the trade is all the way up-is to waste an opportunity to influence the direction of Stealth is the strategy of those who imagine the court. And Republican presidents since that a fight on principle with Senate Nixon have wasted too many of these Democrats can be avoided. It can't be. Even opportunities. What's amazing is how many from a nominee with the dullest, offensive- they've had-eight of the last ten vacancies to-no-one resume, Senate Democrats will occurring on their collective watch. Bush demand a confession of belief in the surely will not want to waste the first one he Supreme Court's abortion jurisprudence. gets. Here it must be said that the entire point of There is also the temptation to nominate the Democrats' strategy on Bush's circuit White House counsel Alberto Gonzales, nominees-whether as the majority, delaying who since Austin days has been a member and not holding hearings, or as the minority, of Bush's inner circle. Were Bush to engaging in filibusters-has been to appoint Gonzales, he would be the Court's influence the kind of choices the p resident first Hispanic, and as such, Bush might be makes for the circuits and, especially, the told, a signal to the growing Hispanic Supreme Court. Already Democrats are population that its home is in the offering Bush advice on his Supreme Court Republican party. But Gonzales would be a choices. Last week Charles Schumer problematic choice for the Court. His legal suggested that Bush pick his Senate career so far doesn't justify confidence that colleague, liberal maverick Arlen Specter! he would turn out to be a justice having the "strength of mind," "consistency of The president can't avoid conflict with convictions," and "judicial philosophy" Senate Democrats, not if he is going to Bush admires. If Bush wants to engage in name someone like Scalia. And indeed, diversity politics, he can confine that were Rehnquist to step down, we would like enterprise to the executive branch and not to see the Democrats try to oppose Scalia as extend it to the judiciary, where the his replacement and to get the fight over appointments are for life. He could, for principle well joined. Scalia is abundantly example, name Gonzales his next attorney on the record on the issues that matter, general, in which case he would be the first including Roe v. Wade and Planned Hispanic in that post. Parenthood v. Casey. ("If only for the sake of its own preservation," Scalia wrote in a A third temptation is to nominate someone 2000 case, "the Court should return without much of a paper trail who, the [abortion] to the people-where the candidate's advocates would claim, will Constitution, by its silence on the subject, prove Scalia-like on the bench. In other left it-and let them decide, State by State, words, a "stealth" nominee. For a president whether this practice should be allowed. who has endeavored not to repeat his Casey must be overruled.") We can think of father's mistakes, we would hope the no one more able to stand his ground, and sufficient answer to that suggestion is the for right principle, than Scalia. name David Souter. Appointed by George H.W. Bush in 1990, Souter is no longer a

101 Yet Scalia should n ot have to stand a lone. Nor should any other nominee. The great lesson of the Bork nomination is that a president must fight for his Supreme Court nominees. Bush should be ready to engage. So should his aides, though it is unclear who would do the job. Attorney General John Ashcroft has been oddly silent on judges. Perhaps Vice President Cheney, whose vote might be needed, could rise to the occasion. In addition, why not let the nominee make his own case? Surely it is time to move beyond the antiquated custom in which the nominee is required to keep silent while interest groups and senators slander him.

In any case, it will be important to make arguments that go beyond the shopwom phrases, "strict construction" and "judicial restraint." Specifically, the administration will have to explain why we need justices who construe the Constitution fairly, who recognize its powers but also enforce its limits, who decline to extend or create rights that aren't found in the Constitution, and who are willing to overrule holdings at odds with the Constitution. Let Senate Democrats argue for j ustices who embrace unlimited national power and create new "constitutional" rights whose enforcement necessarily leaves less room for self- government.

A presidency is always defining itself. So far the Bush presidency-though no one could have predicted this before September 11-has defined itself largely in terms of national security and foreign policy. If a vacancy on the Supreme Court occurs, another defining moment for this president will present itself, and the choice Bush makes will reveal his true commitment to constitutional self-government.

102 Admit the Obvious: It's a Political Process Ideology Governs Judicial Confirmations. Let's Say So

The Washington Post Sunday, July 18, 2004 David Greenberg

Foreign policy and the economy have emerged as the themes of this year's No justice is apt to retire until the election is presidential campaign. B ut in the next four finished. But when one does, the pattern will years we're less likely to see another reassert itself. Already, President Bush is terrorist attack or recession than a different spoiling for a fight. In his 2000 campaign, potentially life-changing event: the he pledged to appoint justices in the mold of retirement of a Supreme Court justice. The Antonin Scalia and Clarence Thomas, the current crop of justices has been together for court's most conservative jurists. Last a record 10 years. It includes the 84-year-old summer, he rebuffed Senate Minority John Paul Stevens, the oldest member of the Leader Tom Daschle's idea that he confer court, and others who have had health with Senate Democrats before selecting any problems. Given the Rehnquist Court's nominee. Some of his choices for appellate penchant for 5-4 decisions, a new justice court judges - notably Brett Kavanaugh, could alter American society for decades. whose chief professional distinction has been to help write the Starr Report - are Whoever wins the White House, it probably hard to interpret as anything but acts of won't change the disingenuous pattern of partisan aggression. And earlier this month, partisan warfare that now takes place Bush visited North Carolina and Michigan surrounding such nominations. Even while to blast the Democrats for holding up his battling each other, the two parties collude lower court appointments. in promoting a fiction: Both profess, against all evidence and common sense, that they Senate Democrats, numbering 48, constitute choose and evaluate nominees not on the a large enough minority to block any basis of ideology, but on professional merits. appointment (if they stick together), since it To base one's opposition or support solely takes 60 senators to end a filibuster and on ideology is seen as politicizing the bring a nomination to a vote. During Bush's judiciary, the branch of government that's presidency, Democrats have united to supposed to stand above the messy fray of oppose several of Bush's choices. They partisan politics. So party leaders contrive to filibustered last year to block the find extra-political reasons to oppose a appointment of Miguel Estrada to the U.S. nominee. They root their objections in a Court of Appeals for the District of reputed character flaw, or performance of Columbia Circuit. Estrada's conservative some unsavory act long ago, or lack of views regarding due process rights earned professional merit. Despite the illusions put him the opposition of most black and forward, it's clear that ideology is at work in Hispanic groups. both appointment and confirmation.

103 November's election won't change much; Washington's nomination of John Rutledge neither party is going to gain enough Senate to be chief justice in 1795 foundered seats to have a filibuster-proof margin. The because Rutledge opposed the newly Democrats, even if they were to regain negotiated Jay Treaty with Great Britain. control, won't be able to do more than Nathan Clifford, James Buchanan's choice obstruct the GOP agenda if Bush wins. And for the bench in 1858, was rejected for being if John Kerry wins? Republicans proved too pro-slavery. And radical Senate during Bill Clinton's presidency that they, Republicans beat back Ulysses S. Grant's too, can thwart an appellate court effort in 1870 to place on the court Ebenezer nomination. Clinton dodged fights at the Hoar, who had opposed the impeachment of Supreme Court level by vetting his potential Andrew Johnson. nominees beforehand with Senate GOP leaders. Still, when Byron White and Harry In the 20th century, a different pattern Blackmun retired, in 1993 and 1994, danger emerged. Senators mostly deferred to the filled the air. Had Clinton followed his heart president's wishes. From 1895 to 1968, only and nominated former New York governor one high court nominee - John J. Parker, in Mario Cuomo, he would certainly have 1930 - met defeat. Although a few others ignited a firestorm. Instead, he put Ruth faced some rough weather, the strong Bader Ginsburg and later Stephen G. Breyer presidency that emerged with William on the high court. McKinley and Theodore Roosevelt allowed the chief executive generally to shape the Although a few senators have recently Supreme Court. begun arguing for letting friends or foes of a nominee frame their support or objections in The collapse of the unchallenged honestly ideological terms, they have yet to presidential prerogative did not start with alter the dynamic. That's because five deep Ronald Reagan's ill-fated 1987 nomination historical developments - the decline of the of Robert Bork. Rather, it began in 1968, imperial presidency, the prevalence of when an alliance of Republicans and divided government, the rise of expertise, Southern Democrats, furious about the the advent of identity politics and the liberal rulings of the Warren Court, emergence of a culture of scandal - have filibustered to keep Lyndon Johnson from conspired over the last generation to bring elevating his friend Abe Fortas to the chief us to where we are today. justiceship. (It's often recalled that Fortas was blocked because of shady financial This unacknowledged partisanship was not dealings, but those arrangements didn't fully the norm for court appointments in earlier emerge until the next year, when they eras. In the nation's first century, senators precipitated his resignation altogether.) were deeply involved in the appointments, Since the Fortas imbroglio, most presidents often objecting to a president's nominees for have faced difficulty in getting their unabashedly political reasons. Between appointments through the Senate. Richard 1789 and 1894, 22 of 81 presidential Nixon lost two battles (Clement Haynsworth Supreme Court nominees failed to reach the and G. Harrold Carswell) and so did Reagan bench. They were either rejected, withdrawn (Bork and Douglas Ginsburg). And both or left unacted upon by the Senate. The those presidents had trouble confirming reasons senators gave were sometimes William Rehnquist, first to the court and baldly political. For example, George then as chief justice. George H.W. Bush

104 won a fierce fight over Clarence Thomas. alleged financial impropriety (Haynsworth), All along, ideological warfare - under the racist behavior (Carswell, Rehnquist), sexual increasingly untenable guise of a debate on harassment (Thomas), drug use (Ginsburg), the merits - intensified. blindness to conflicts of interests (Haynsworth, Carswell) or other scandals, Several profound shifts in American culture real or inflated. combined to create this new politics of appointments. First, the late 1960s and early Even the apparent exception to this rule - '70s witnessed a broad assault on the the 1987 defeat of Bork - reinforced the presidency from the New Left and the New unspoken ban on ideology. Bork's critics Right alike, and, with the Nixon described him not as too conservative, but as administration's abuses of power, liberals "out of the mainstream." ... His foes seemed also began to fear an "imperial presidency." to be decrying the bearded nominee's Responding to such concerns, senators character or even his sanity, rather than his revived their advise-and-consent mandate as opinions. (Bork asked the White House if he a way to check executive power. should sacrifice the beard for the team, but it was decided that shaving off a 20-year-old Divided government also shaped the new personal trademark would attract more dynamic. Nixon was the first president since criticism than the facial hair.) 1848 to take office with the opposition party controlling both houses of Congress, and Bush spoke in what has become familiar many Democrats, angry over Fortas's code during his July 7 campaign stop in treatment, resolved not to let the new North Carolina. "When the nominees come administration steer the high court into before people in my administration, we conservative terrain. Reagan, the first B ush don't say, what is your specific position on and Clinton also lacked Senate majorities, that issue or another issue. What we say to complicating nominations. the person is, what is your judicial temperament?" Bush said. "And I don't believe in litmus tests. [. . .] I do believe in making sure that we share a philosophy." Expertise and identity became innovations in public relations - ways of winning the It's perfectly natural that Supreme Court battle by setting the terms of debate. appointments should be political issues, and Senators responded with innovations of their it's time to stop pretending otherwise. own. Notably, the enthusiasm for personal Justices do not shed their politics when they scandal that engulfed politics in the join the bench. Senators shouldn't be Watergate era provided a way to shoot down embarrassed to say that they care whether unpalatable nominees without invoking the court is liberal or moderate or ideology. Since Fortas, nominations have conservative. And candidates for president turned - superficially - on questions of should be pressed to talk about it a lot more.

105 Dismissed in Boston Why won't the Democrats talk about judges?

Slate Wednesday, July 28, 2004 By Dahlia Lithwick

The American Constitution Society hosts a But more important, wasn't this election panel at the Boston Public Library titled supposed to be a referendum on Bush v. "The Constitution at the Crossroads: 2004 Gore? Weren't the majority of American and the Future of American Law." The first voters who felt that they'd been shafted by a question after the formal presentation goes partisan Supreme Court four years ago going to the perennial election problem: "How do to rise up this time and say "no" to we get the issue ofjudges to matter to the ideological justices and their origami American voter?" Why don't people care Constitution? what kinds of judges the president puts on the bench? Apparently not, agrees the panel. People just don't track judicial appointments as an I have read my share of overheated articles issue, and we just don't consider the power this month-the ones about the possibility of to appoint judges a truly important one. four Supreme Court vacancies over the next Professor Pam Karlan, of Stanford Law four years-and if I hear one more person School, suggests that the remedy for this characterize Justice Ruth Bader Ginsburg as judicial apathy is that individuals whose teetering on death's door I will smack them. lives have been affected by the courts need But the truth is that no one cares who to speak out. She's right. We hear nothing appoints the next four justices, or three about judges who refuse to grant abortion justices, or seven. We just don't. So, the waivers. We hear nothing about judges who lawyers are, quite reasonably, wondering refuse to be bound by civil rights law. The why. fact that Bill Pryor, President Bush's recess appointee to the 11th Circuit Court of In a sense, it's an unfair question to ask at Appeals, just cast the deciding vote not to this convention, because the hear a case challenging the Florida law environmentalists, the stem cell folks, and preventing gay couples from adopting went the labor people are all in the same fix: This almost completely unnoticed in the national isn't the year to get any one issue before media. voters, who are having enough trouble deciding what to think about the war. But, if Something magical happens when judges you can ignore the war for a moment, this are confirmed to the bench. They become should have been the year in which judicial oracles, and we as a nation just stop caring appointments mattered a whole lot. For one about their activities. (Strangely, however, thing, if you cared about gay marriage, or some liberal jurists need only burp at oral abortion, or the right to die, or civil liberties, argument before the cries of "liberal as much as they say you do, almost nothing activist" ring out.) Someone in the audience else matters but who's on the federal bench. suggests that we need to do a better job of demystifying the Supreme Court. Someone

106 else adds that it would be "nice to know who But by failing to care who gets a lifetime these guys and gals go fishing with on appointment to the federal bench, or to weekends." Big laugh. scrutinize what they do there, we have dropped the ball on the very same social Another audience member makes a really issues we claim to care about most. nice point: We tend to think of election cycles in manageable four-year units. If we I keep thinking that one speaker at this don't like the job he's doing, we can boot convention needs to stand up at that podium him in a few short years. We forget that tonight and say: "Ladies and Gentlemen. judicial terms are measured in decades. Abu Ghraib. Thank you. Goodnight." These bombs have extremely long fuses. Because shouldn't this election ultimately be a referendum on the rule of law? Shouldn't Professor Charles Ogletree of Harvard Law the only issue before us be whether or not School points out that Republicans have there w ill b e l egal c onstraints on executive simply done a better job than Democrats of power? Walter Dellinger, former acting articulating, committing to, and selling a solicitor general under Bill Clinton and star coherent judicial philosophy. Democrats Slate contributor, puts this far more have used the presidency to create diversity eloquently when he warns that if we don't on the bench but never to promote a unitary cast our votes about Guantanamo, and Abu philosophy. Those chickens are now coming Ghraib and those torture memos, we will home to roost. someday look back on this election as emblematic of a national moral failure. This is all a double-edged sword, of course. One of the very best things about the What is at stake, in this election, is whether American electorate is its reverence for the we value the notion of being a nation that's judiciary. By refusing, for the most part, to ruled by law as opposed to rulers. This isn't be drawn into campaigns to smear, slander, just a voting issue. It's what used to launch and second-guess our judges, we have given revolutions. them the space and independence to be fair.

107 APPOINTMENTS

The Right-Wing Assault What's at stake, what's already happened and what could yet occur

The American Prospect March, 2003 Cass R. Sunstein

Since the election of President Reagan, a unsupportable judicial interference with disciplined, carefully orchestrated and quite political decisions. They wanted courts to self-conscious effort by high-level back off. But the goal has increasingly been Republican officials in the White House and to promote "movement judges" - judges the Senate has radically transformed the with no interest in judicial restraint and with federal judiciary. For more than two real eagerness to strike down the acts of decades, Republican leaders have had a Congress and state governments. On the clear agenda for the nation's courts: to central issues of the day, many conservative reduce the powers of the federal judges seem to think that the Constitution government; to scale back the rights of those should be interpreted to overlap with the accused of crime; to strike down latest Republican Party platform. affirmative-action programs and campaign- (Sometimes they call this "strict finance laws; to diminish privacy rights, construction.") including the right to abortion; and to protect commercial interests, including In transforming the federal judiciary, commercial advertisers, from government Presidents Ronald Reagan and George Bush regulation. They have sought judicial Senior were critical figures, seeking to candidates who would interpret the populate the bench with young judges Constitution and other federal statutes in a committed to the preferred view of the way that would promote this agenda. And Constitution. Many of their appointees their nominees have been appointed to the remain active - and will so remain for many bench. years. But the effort to reshape the federal judiciary has not been limited to Republican To a degree that has been insufficiently presidents. Republican senators have been appreciated, and is in some ways barely equally single-minded. Showing believable, the contemporary federal courts extraordinarily little respect for presidential are fundamentally different from the federal prerogatives, right-wing senators did courts of just two decades ago. What was whatever they could to block President then in the center is now on the left; what Clinton's judicial nominees. Sometimes the was then in the far right is now in the center; obstructionists justified their actions by what was then on the left no longer exists. labeling Clinton nominees, whatever the Conservative thought itself h as c hanged no facts, as "liberal activists." Sometimes they less radically. In the 1960s and 1970s, offered no reasons at all and simply refused principled conservatives were committed to to schedule confirmation hearings. One a restrained and cautious federal judiciary. result was that many moderate Clinton Their main targets included Roe v. Wade and nominees received no serious consideration Miranda v. Arizona, which they saw as

108 from the R epublican-led S enate Committee What about the lower courts? Many people, on the Judiciary. including some Democrats, have urged that judges on those courts simply vote in In contrast with their single-minded accordance with "the law." In their view, it Republican counterparts, Democrats in the doesn't really matter whether appointees White House and the Senate have been come from Democratic or Republican astonishingly passive. To high-level presidents. This claim might have been true Democrats, the composition of the federal in previous periods in American history. But judiciary has rarely been a major priority. because of the efforts of recent Republican Clinton chose two centrist justices, Ruth presidents, the argument is ludicrous. My Bader Ginsburg and Stephen Breyer, whose own studies show stunningly sharp views are far more cautious and moderate differences between the votes of judges than those of such liberals as William appointed by recent Republican presidents Brennan and Thurgood Marshall. Ginsburg and the votes of judges appointed by recent and Breyer are exceptionally distinguished Democratic presidents. Consider a few choices (and, in my own view, their caution examples: Republican-appointed judges and moderation are entirely appropriate). almost always vote to strike down But they cannot be counted as the campaign-finance laws, whereas Democratic counterparts to Justices Antonin Democratic-appointed judges usually vote to Scalia and Clarence Thomas. And with a uphold those laws; Republican-appointed few prominent exceptions, including the judges generally vote to strike down nominations of Robert Bork and Thomas, affirmative-action programs while Democratic senators have usually deferred Democratic-appointed judges to Republican presidents. Under Reagan and overwhelmingly vote to uphold those Bush Senior, immoderate "movement" programs; Democratic judges are much judges have been confirmed to the lower more likely to vote to strike down courts without the slightest protest. restrictions on the right to choose than Republican judges, who are far more likely JudicialRobes, PoliticalSwords to s trike d own an environmental regulation that has been challenged by industry in The result of this one-sided political battle is court. that America now has an ideologically reconstructed federal judiciary that has taken Many defenders of right-wing judicial a strong stand, in many cases, against both activism contend that they are really Congress and the states. The Rehnquist behaving neutrally. Often they say that they Court has struck down at least 26 federal are simply following "originalism" - an enactments since 1995 - a record of approach that interprets the Constitution in a activism against the national legislative way that fits with the original branch. In terms of sheer numbers of understandings of those who ratified it. invalidations of acts of Congress, the Originalism is a principled and honorable Rehnquist Court might well qualify as the position. Unfortunately, the current right- all-time champion. wing activists aren't practicing it. The original understanding of the 14th Amendment, passed during Reconstruction, strongly suggests that affirmative-action programs are acceptable. But because the

109 right-wing activists on the bench and in the grounds, to some of the Court's liberal Department of Justice are on the warpath decisions, including Roe v. Wade itself. against affirmative action, they don't consult They were right to say that the Court should the original understanding when it doesn't be reluctant to wield ambiguous suit them. In ruling that Congress lacks the constitutional provisions as a kind of power to allow citizens to sue to enforce the weapon against reasonable judgments from law, the Rehnquist Court said not a word Congress and the states. But in the current about the original understanding, which period, President Bush and others are asking indicates that Congress has exactly that the Court to do exactly that. Right-wing power. Too often, the views of activists even appear to have convinced contemporary federal judges are closer to themselves that, by remarkable coincidence, the Republican Party platform than to those there is a close fit between their own of the framers. political commitments and the Constitution itself. In a way, they're right: By appointing judges who see things their way, the fit is becoming closer every day. I don ot s uggest that t he c onstitutional 1aw of 2010 will look at all like the Is there any possible response? It would be constitutional law of 1935. Courts move good to begin with a sustained objection by slowly; usually they respect their own those who understand the problem. The precedents. But significant changes are nation is in the midst of a period of right- continuing to occur. Amid those changes, wing judicial activism, more extreme than what is most alarming is the large-scale shift any such period since the New Deal itself A in conservative commitments. I believe - great deal has already happened, but much indeed, I argued in the first issue of this worse may be on the way unless far more magazine 13 years ago [see "The Future of people - moderate and even conservative Constitutional P olitics," TAP, Spring 1 990] Republicans, as well as Democrats - come - that in the 1960s and 1970s, conservative to see what the nation stands to lose. critics were right to object, on democratic

110 Remarks by the President During Federal Judicial Appointees Announcement The East Room

May 9, 2001

Thank you all very much. Attorney General, With me this afternoon are my first 11 it's good to see you, sir, and happy birthday. judicial nominees, individuals of experience Today is his birthday. Also, Judge Al and character. Four of them serve as United Gonzales. Judge Gonzales is a great friend States district judges, all four confirmed by of mine who, fortunately, is my lawyer and unanimous votes. Two others are sitting is a part of the process, judicial selection judges on state supreme courts. Four have process. Thank you for being here, Judge. served as law clerks in the Supreme Court of the United States. One has served here as an I'm also honored to welcome members of associate counsel to the President. One the who are here to already holds the position for which I welcome the nominees to Washington: of nominate him, by recess appointment of course, Senator , Chairman of President Clinton. the Judiciary; as well as Senator , ranking member on the Judiciary. These men and women have followed It's good to see you men, thank you both for different paths to this nomination. They coming. come from diverse backgrounds, and will bring a wide range of experience to the John Warner, George Allen, George bench. All have sterling credentials and have Voinovich and last, but not least, Senator met high standards of legal training, Strom Thurmond. Welcome. (Applause.) temperament and judgment. Thank you all for coming. As a group, they command broad, bipartisan I'm pleased to welcome my judicial support among those who know them and nominees to the White House. And I'm who have served with them. I submit their pleased to welcome their family and friends, names to the Senate with full confidence as well. that they will satisfy any test of judicial merit. This is a proud moment for all of you, and it's a proud moment for me, as well. A These first nominations are also an President has fewer greater responsibilities opportunity to outline the standards by than that of nominating men and women to which I will choose all federal judges. The the courts of the United States. A federal American people expect judges of the judge holds a position of great influence and highest caliber, and my nominees will meet respect, and can hold it for a lifetime. that test. A judge, by the most basic measure, has an obligation shared by the When a President chooses a judge, he is President and members of Congress. All of placing in human hands the authority and us are constitutional officers, sworn to serve majesty of the law. He owes it to the within the limits of our Constitution and Constitution and to the country to choose laws. When we observe those limits, we with care. I have done so.

111 exercise our rightful power. When we For many w eeks now, w e have sought and exceed those limits, we abuse our powers. received advice from senators of both Every judge I appoint will be a person who parties. I now submit these nominations in clearly understands the role of a judge is to good faith, trusting that good faith will also interpret the law, not to legislate from the be extended by the United States Senate. bench. To paraphrase the third occupant of Over the years, we have seen how the this house, James Madison, the courts exist confirmation process can be turned to other to exercise not the will of men, but the ends. We have seen political battles played judgment of law. My judicial nominees will out in committee hearings - battles that have know the difference. Understanding this will little to do with the merits of the person make them more effective in the defense of sitting before the committee. rights guaranteed under the Constitution, the enforcement of our laws, and more effective This is not good for the Senate, for our in assuming that justice is done to the guilty courts or for the country. and for the innocent. There are, today, over a hundred vacancies My standard is informed by the oath that on the federal courts, causing backlogs, each judge will take: to administer justice frustration and delay of justice. I urge without respect to persons, and to do equal senators of both parties to rise above the right to poor and to the rich. A good judge bitterness of the past, to provide a fair exercises these powers with discernment, hearing and a prompt vote to every nominee. courage and humility. These are That should b et he c ase for no m atter w ho commitments, not just to philosophy, but of lives in this house, and no matter who character. controls the senate.

My nominees today and in the years to come I ask for the return of civility and dignity to will be notable for their distinction and the confirmation process. And with this accomplishments. And all will be distinguished group of nominees awaiting exceptional for their humanity and their confirmation, t here i s no b etter opportunity integrity. With today's 11 nominees, we than right now. I congratulate all of you on continue a constitutional process that your service past, and for your service to involves all three branches of government. come.

God bless. (Applause.)

112 Stop the Madness In the judicial nominations war, do unto others as you would have them do unto you.

Legal Times May 27, 2003 Stuart Taylor Jr.

Republicans and Democrats are nearing the But such a ruling, Senate Democrats have brink of nuclear warfare over President made clear, would mean Armageddon. They George W. Bush's judicial nominations. would and could use parliamentary devices Unless both sides c ompromise, the damage to b ring t he chamber to a grinding halt for to the government and the nation could be weeks or months, bottling up Bush's entire profound. legislative program and slowing down all other business. The fallout would bring Hostilities have raged on and off since the partisan bitterness to a nadir unseen in 1987 Battle of Bork, resulting in a recent history. downward spiral of partisan bitterness and recriminations. The latest and biggest Time to be Statesmen escalation has been Senate Democrats' all- but-unprecedented filibusters of It's time for a statesmanlike compromise to professionally well-qualified Bush nominees take us back from the brink, like the one that who are simply too conservative for the President John Kennedy and Soviet leader Democrats' taste. And now, as both sides Nikita Khrushchev crafted to step back from prepare for a climactic battle in the event of the brink of nuclear war during the Cuban any Supreme Court retirements, Republicans missile crisis of 1962. are threatening the so-called nuclear option. The key would be for Republicans and Here's how it would work: Republican Democrats alike to recognize that only a leaders would ask Vice President Dick blinkered partisan or an artificial- Cheney, as the Senate's presiding officer, to intelligence supercomputer could calculate rule that the Constitution requires the Senate with real confidence which party deserves to hold up-or-down majority votes on all more blame for bringing the judicial presidential nominees. Such a ruling would appointment process to an ever-somier state trump any contrary advice from the Senate's over the past 16 years. parliamentarian. And unless vetoed by a Senate majority, such a Cheney ruling President Ronald Reagan arguably would override both the Senate rule overreached when he nominated requiring 60 votes to break a filibuster and archconservative Robert Bork in 1987 to fill the one requiring 67 votes to amend the the seat of moderate centrist Justice Lewis rules themselves. It would also weaken the Powell Jr. This effectively asked a counter-majoritarian role that the Senate has Democratic-controlled Senate to help move proudly played since the founding of the the Supreme Court - as closely divided then nation. as now - sharply to the right; just for starters, Bork's confirmation would The Republicans could then ram all of probably have doomed Roe v. Wade. Bush's nominations through with 51 votes. Democrats understandably balked. But

113 rather than confining themselves to January, the Democrats had to choose challenging Bork's conservative views, they between seeing Bush's nominees confirmed demonized the distinguished former solicitor en masse and resorting to the filibuster. general as a monster bent on destroying our Never before has this parliamentary weapon constitutional rights. been used to kill nominations solely because of ideological disagreements. But now, Then, during the first Bush administration, Democrats are filibustering two came t he equally bitter battle of 1991 over professionally well-qualified Bush nominees another archconservative, Clarence Thomas, to federal appeals courts, Miguel Estrada which would have been a partisan and . They plan to filibuster extravaganza even if Anita Hill had never others, and are threatening to filibuster any shown up. Senate Democrats could not stop Supreme Court nominee they consider too Thomas. But below the radar, they used conservative. stalling tactics to bottle up some well- qualified lower-court nominees. Unhealthy Precedent

Senate Republicans greatly escalated such If this tactic succeeds, it will set an stalling tactics during President Bill unhealthy precedent. While the Senate has Clinton's second term. Despite Clinton's confirmed 124 of Bush's judicial nominees, conciliatory efforts to consult with them, any 41 senators could henceforth kill any and his avoidance of provocative judicial [or executive branch] nomination, nominations - most of his picks were closer no matter how admirable the nominee's to being moderates than crusading liberal character and qualifications. The result activists - Republicans used "secret holds" would be to unduly sap the power of Bush and other gimmicks to deny votes to many and future presidents to shape the judiciary - Clinton nominees and demagogic attacks to and to doom almost any nominee who has defeat one [Ronnie White] on the floor. ever dared express a controversial thought.

One result was to save for the current So it's not hard to understand the President Bush lots of lower-court vacancies Republicans' temptation to go nuclear. Their that would, but for Republican argument that the Constitution requires the obstructionism, have previously been filled Senate to confirm any presidential nominee by Clinton nominees. Although Bush made who has majority support is plausible, a brief conciliatory gesture by renominating although far from compelling. And Bush one of those Clinton choices, he has might profit politically by the GOP's going otherwise treated his narrow election victory nuclear, especially if the Democrats seek to as a mandate to mount the most determined filibuster a Supreme Court nominee who push of any president in recent history to comes across at his or her confirmation change the ideological balance of the lower hearing as likable, unthreatening, and federal courts. telegenic.

Senate Democrats understandably felt But resorting to the nuclear option would justified in resorting to stalling tactics of drive the last nail in the coffin of Bush's their own to bottle up some of Bush's more pledge to be a uniter, not a divider. It would conservative choices. And after a bare 51- also be bad for the country, which needs less seat Republican majority took control in partisan warfare, not more.

114 The president should invite Senate judges on the lower federal courts, on the Democrats to pull back from the brink. The other hand, have far less latitude and are far best way to do that might be an informal more constrained by Supreme Court compromise along these lines: Bush would precedents. promise to consult seriously with Democratic senators before making any No more Provocations judicial nomination, as the Constitution's "advice and consent" clause contemplates. Any such compromise would quickly In addition, in light of the Senate's slim unravel unless Bush and Senate Democrats Republican majority, he would pledge not to avoided unnecessary provocations. If try to swing the Court's ideological balance conservative Chief Justice William by naming a strong conservative to replace Rehnquist retires, for example, it would not any of the four liberal or two centrist justices do for Bush to try to promote Justice who may retire during this Congress. Antonin Scalia, a slightly more conservative, ferociously brilliant polemicist These Bush pledges would be conditioned who is a red flag to liberals. Such a on a commitment by Democratic leaders to nomination would not tip the Court's end their current filibusters and not to balance [Scalia would still have only one filibuster any other judicial nominees on vote]. But it would send liberal groups into a ideological grounds as long as Bush keeps frenzy that would make it hard for Senate his part of the bargain. Bush could make the Democrats to resist liberal demands for a deal more palatable by giving a bit of filibuster. ground to the Democrats who seek access to Miguel Estrada's internal memos from when Perhaps the most formidable obstacle to any he worked in the solicitor general's office. compromise is that Republicans and Democrats alike seem to believe The logic of such a compromise would be a passionately that their adversaries' tactics mutual recognition that filibustering a have been uniquely outrageous. There may Supreme Court nominee would be a far be less trust between them than there was more defensible tactic than filibustering a between Kennedy and Khrushchev in 1962. lower-court nominee. The reason is that - Before it's too late, they should all ask especially when the justices are as closely themselves this question: divided as now - one or two Supreme Court appointments could engineer dramatic If the shoe were on the other foot - if a changes in the law on big national issues President Al Gore were trying to ram a slate including abortion, affirmative action, of liberal judicial nominees past a 48-seat religion, campaign finance, and civil Republican minority - wouldn't we be doing liberties. Arguably, the president should not about the same things that our adversaries be able to engineer such a change with a are doing now? mere 51 votes in the Senate. The 800-odd

115 Checkmate in the Judges Game?; For democracy's sake, President Bush should threaten a recess appointment,or two.

Legal Times September 8, 2003 Randolph J. May

Quick! Name President Dwight on the 4th Circuit. More than two years Eisenhower's three recess appointments to later, both Estrada and Owen still have been the Supreme Court. denied confirmation votes, and, along with Pryor, have faced filibusters mounted by C'mon, fess up. You didn't know that Chief Senate Democrats. Justice Earl Warren [1953] and Justices William Brennan Jr. [1956] and Potter A Good Firestorm Stewart [1958] took their seats by virtue of appointments made during Senate recesses. I understand that in today's supercharged Each was subsequently confirmed by the judicial nominations environment, recess Senate, but not before participating in appointments - which would allow Estrada, deciding cases during their recess service. Owen, and Pryor to sit on the bench until the Senate either confirmed them or the next More recently, three weeks before leaving congressional session ended - will ignite a office, President Bill Clinton appointed political firestorm stoked by Sens. Patrick to the U.S. Court of Appeals Leahy of Vermont, Edward Kennedy of for the 4th Circuit, after Gregory's Massachusetts, and Charles Schumer of nomination had stalled in the Senate for six New York and their fellow Senate Judiciary months. Committee Democrats. I don't purport to know how the politics would play out. But I So, here's my not-so-modest - and do contend that if Bush believes his admittedly politically risky - suggestion for nominees are qualified for the bench and President George W. Bush: Now that have been treated unfairly in the Senate, a Congress is back from its August recess, he few recess appointments will provoke a should promptly announce that if the Senate constitutional dialogue in the country that fails to vote on the nominations of Priscilla can actually contribute to our nation's Owen and William Pryor Jr. before it next political health. leaves town, he will give them recess appointments. And he should try to convince There is always the risk, and not a small Miguel Estrada, who has informed the one, that this tactic would further politicize president that he wishes to withdraw his the already overly partisan judicial nomination, to accept a recess appointment nominations process. But we may already too. have reached the limits of nasty partisanship. There can be no doubt that Estrada and Owen were both nominated, many well-qualified men and women who along with Roger Gregory, in May 2001 in would distinguish themselves as federal Bush's first batch of judicial nominations. judges are discouraged from accepting Gregory was confirmed within three months, nominations for fear of having to run the becoming the first African-American to sit

116 Senate gantlet. Witness Estrada's bitter I've mentioned should be confirmed, and experience with the broken process. that the filibusters preventing votes on their nominations are inappropriate. Rather, my If, in response to the political firestorm point is that because Bush surely believes ignited by the recess appointments, Bush they should be confirmed and are being were committed to vigorously defending his treated inappropriately, he should escalate action, the nation could benefit from the the fight for them in a way that will engage ensuing debate. The president would have to the American people in a constitutional explain why, in his view, his nominees are dialogue. well-qualified to be judges by virtue of their professional and personal attributes, why he Talk to the People believes they are not the "judicial extremists" their Democratic opponents Some may argue that a spirited debate proclaim them to be, and why circuit court between the president and the Senate judges are not free to disregard Supreme Democrats, and the defenders of each, Court precedent in a system governed by the concerning the issues of constitutional rule of law. principle and philosophy involved in the nomination fights is too esoteric for the And the president would have to articulate public to follow. I give the American people his views concerning the Senate's proper more credit, and see no reason to leave this advice and consent role, and the degree of debate to inside-the-Beltway pundits and the deference that he believes should be nation's law professors. accorded a president's nominations. He would have to explain the circumstances, if Our democracy's ongoing vitality depends any, under which he thinks it appropriate for on widespread understanding of our Senate filibusters to be mounted to deny constitutional system by a broad swath of judicial nominees up-or-down votes on their the American citizenry, especially in an era nomination. when we are absorbing so many immigrants from lands with far different political Finally, he would be forced to explain why systems and constitutional cultures. Such he believes recess appointments to Article understanding can be enriched when our III courts are proper in the face of the likely elected leaders engage in serious debate charge that such appointments compromise about fundamental constitutional issues. not only the Senate's advice-and-consent role, but also the independence of the Of course, Bush should follow my appointees who have not been granted life suggestion only if he believes that the recess tenure by virtue of Senate confirmation. appointments are constitutional. It would not After all, it might be argued that a recess serve his interests, or the nation's, to appointee may tailor his or her decisions to instigate a constitutional debate by acting in enhance prospects for ultimate confirmation. an unconstitutional manner. This is where some more constitutional history and My point here is not to argue in favor of precedent are useful. specific nominees, or against the use of Senate filibusters to block an up-or-down Recess appointments of Article III judges vote on their nominations - although, based are not a recent phenomenon. To the on what I know, I think that the nominees contrary, the practice dates from the

117 republic's earliest days. George Washington, President's recess power were limited." To who had served as president of the the same effect, the 9th Circuit, while Constitutional Convention, made three acknowledging that a recess appointee recess appointments of federal judges in his theoretically may be subject to greater first year in office. There is no evidence that outside pressure than a confirmed judge, his recess appointments to the Supreme nevertheless concluded that it must "view Court of Justice Thomas Johnson [1791] and the recess appointee n ot as a d anger tot he Chief Justice John Rutledge [1795] were independence of the judiciary, but as the challenged by any of the Founders then extraordinary exception to the prescriptions serving in his Cabinet or in Congress. of Article III." Perhaps, most tellingly, by the end of 1823, during a period when most Founders were Make no mistake. I am not advocating that still alive, there had been five recess Bush embark on a campaign of wholesale Supreme Court appointments, without recess appointments. And I am not engendering constitutional controversy. intimating that I know whether Owen, Pryor, and, especially now, Estrada even would All in all, there have been more than 300 accept such appointments. Certainly, the recess appointments to Article III courts. personal sacrifice involved, without any [For more on the historical record, see the assurance of ultimate confirmation, could be September 2001 paper, Recess substantial. Appointments of Federal Judges, by Louis Fisher of the Congressional Research High-Stakes and High-Minded Service, and the unsigned 1957 Stanford Law Review note "Recess Appointments - What I am suggesting is that, if the Constitutional but Unwise?"] nominees would agree, and if Bush is willing to take his case to the people, the There has never been a challenge to recess heat generated by recess appointments appointments for federal judges to reach the would create the opportunity - indeed, Supreme Court. Both the 2nd and 9th necessity - for the president to lead an circuits, the only two appeals courts that edifying dialogue. This high-stakes and have considered the issue, have dismissed high-minded discussion would concern the arguments that the Article II recess appropriate role of federal judges in our appointment power does not encompass judicial system, including those who sit Article III judges. [See United States v. below the Supreme Court; preferred modes Allocco [2nd Cir. 1962] and United States v. of constitutional interpretation; and the Woodley [9th Cir. 1985].] boundary that separates the "extreme" from the "mainstream" in our constitutional Responding to the principal claim that a jurisprudence. temporary appointee lacks the independence of a life-tenured Article III judge, Allocco In a government that ultimately must stand stated: "This hypothetical risk must be or fall based on a shared understanding of weighed against the danger of setting up a constitutional values and the rule of law, roadblock in the orderly functioning of more rather than less constitutional government which would result if the conversation is always a good thing.

118 Bush Bypasses Senate On Judge Pickering Named To Appeals Court During Recess

The Washington Post Saturday, Jan. 17, 2004 Mike Allen and Helen Dewar

President Bush bypassed senators yesterday renominated Gregory, who was confirmed and installed Charles W. Pickering Sr. as an for life. appeals court judge, ending a three-year battle over a Mississippian viewed by Pickering was challenged by Democrats Democrats as hostile to civil rights. over his 1994 actions from the bench to Republican officials called the decision a reduce the sentence of a man convicted of calculated escalation by Bush in his standoff burning a cross near the home of an with Democrats over their use of delaying interracial couple. Republicans contend tactics to stall several of his most Pickering was motivated by concern over conservative nominees for lifetime seats on the fairness of sentences meted out in the the federal bench. The move threatened to case. poison White House relations with Democrats further at the start of an election Democrats also raised questions about year. Pickering's contacts as a state senator in the 1970s with the Mississippi Sovereignty Bush used his recess-appointment powers to Commission, which worked to preserve seat Pickering, 66, a federal district judge in segregation. Bush has called Pickering "an Hattiesburg, Miss., on the U.S. Court of advocate of civil rights" and pointed to a Appeals for the 5th Circuit, based in New large number of African American leaders in Orleans. Pickering was sworn in last night at Mississippi who came forward to declare the U.S. District Courthouse in Jackson, their support for him. Miss., the state capital, less than three hours after Bush's announcement. Bush, in a written statement issued after he had departed for Camp David yesterday Such appointments, which the president can afternoon, asserted that a bipartisan majority make when lawmakers are out of session, of senators supports Pickering and that "if last until the next Congress takes office - in he were given a vote, he would be this case, next January. confirmed."

Senate records show the power, usually "But a minority of Democratic Senators has exercised with lower-profile nominees, has been using unprecedented obstructionist been used to elevate j udges only a handful tactics to prevent him and other qualified of times in the past 30 years. Less than a individuals from receiving up-or-down month before leaving office, President Bill votes," he said. "Their tactics are Clinton used the mechanism to install Roger inconsistent with the Senate's constitutional L. Gregory as the first black judge on the responsibility and are hurting our judicial U.S. Court of Appeals for the 4th Circuit, system." which includes Maryland and . Bush

119 Sen. Charles E. Schumer (D-N.Y.), a As they had done with several other Bush Judiciary Committee member, said he took nominees, Democrats filibustered the appointment as "a finger in the eye." Pickering's nomination. On a vote of 54 to 43 in Pickering's favor, the judge's backers A Senate Republican leadership aide said fell six votes short of the 60 needed to end the appointment was intended as a "shot the stalling tactics and bring the nomination across the bow" to Democrats after the to a final vote. Bush called the action "a White House decided they were paying too disgrace." small a price for filibustering the nominations of Pickering and five other Democrats condemned Bush's decision, appeals court nominees, several of whom announced at the start of a holiday weekend. Bush sees as potential Supreme Court picks. But the aide said Bush was "taking a Senate Minority Leader Thomas A. Daschle chance," because Democrats might retaliate (D-S.D.) said it shows Bush "has no interest on other nominees they might otherwise in working in a bipartisan manner to appoint have allowed to be confirmed. moderate judges who will uphold the law." And Sen. Patrick J. Leahy (D-Vt.), ranking Both parties are likely to make Pickering an minority member of the Judiciary issue in November's election as an engine Committee, called Bush's move a "cynical, for motivating core supporters. Within hours divisive appointment that will further of Bush's decision, Democrats were politicize the federal judiciary." charging that the appointment shows his reelection could threaten reproductive and Several leading Democratic senators civil rights. Republicans were arguing that juxtaposed the appointment of Pickering Pickering's dilemma shows why Bush needs with Bush's wreath-laying in Atlanta on more Republicans int he S enate, where t he Thursday at the grave of Martin Luther King split is 51 Republicans, 48 Democrats and Jr., on what would have been the slain civil one independent. rights leader's 75th birthday. Sen. Edward M. Kennedy (D-Mass.) called the Nominated by Bush soon after he took appointment "an insult to Dr. King, an insult office in 2001, Pickering was rejected by the to every African American" and said it Senate Judiciary Committee when "serves only to emphasize again this Democrats controlled the chamber in 2002. administration's shameful opposition to civil Bush renominated him last year as soon as rights." Republicans regained control of the chamber. The nomination stalled after a Campaigning in Iowa, several of the furor over racially inflammatory remarks by Democratic presidential candidates decried then-Majority Leader Trent Lott (R-Miss.), the decision. Former Vermont governor his main patron, who subsequently resigned Howard Dean called the appointment, after from his leadership post. the King visit, "an ultimate hypocrisy." Sen. John F. Kerry (Mass.) said Bush is Pickering and his allies continued to try to "threatening civil rights on behalf of right- build support for the nomination. He was wing ideologues." later approved by the Judiciary Committee on a party-line vote, setting the stage for a On the Republican side, Lott said showdown fight on the Senate floor last fall. Pickering's nomination had been "stifled by

120 special interests who have unfairly smeared when his recess appointment expires - the reputation of a good man." unless he is confirmed, which the GOP concedes is unlikely. Republicans said Pickering is likely to retire

121 Statement on Appointment of William H. Pryor Jr.

February 20, 2004 Statement by the President

Today, I exercised my constitutional he would be confirmed. But a minority of authority to appoint William H. Pryor Jr. to Democratic Senators has been using serve on the United States Court of Appeals unprecedented obstructionist tactics to for the Eleventh Circuit. Bill Pryor has prevent him and other qualified nominees served as the Attorney General of Alabama from receiving up-or-down votes. Their since 1997 and has had a distinguished tactics are inconsistent with the Senate's career as a public servant and practicing constitutional responsibility and are hurting attorney. His impressive record our judicial system. demonstrates his devotion to the rule of law and to treating all people equally under the As a result of today's recess appointment, law. He has received widespread bipartisan Attorney General Pryor will fill a seat on the support from those who know him and know Eleventh Circuit that has been designated a his record. I am proud to name this leading judicial emergency. He will perform a American lawyer to the appellate bench. valuable service on a court that needs more judges to do its work with the efficiency the Attorney General Pryor was nominated American people deserve and expect. Again more than 10 months a go, b ut s till h as n ot I call on those in the Senate who are playing received an up-or-down vote in the Senate. politics with the American judicial system to A bipartisan majority of Senators supports stop so that my nominees receive the up-or- his confirmation. If Attorney General Pryor down votes they deserve. were given a vote on the floor of the Senate,

122 Understudies

The New Republic May 26, 2003 Clay Risen

This January, the Bush administration numerous in the federal judicial system, and nominated James Leon Holmes, a Little as such they are often deemed politically Rock lawyer, to sit on Arkansas's Eastern irrelevant-concerned with, as one staffer to District Court. On April 10, however, a member of the Judiciary Committee puts Holmes's nomination was delayed it, "making widgets." But those widgets are indefinitely in the Judiciary Committee after the building blocks of much of U.S. law. a group of Democrats, along with moderate Because, in most instances, district courts Republican Arlen Specter, balked at his are the first courts to hear a case, they set the religious-right provenance. (As the former tone for later appeals. "District courts make, president of Arkansas Right to Life and a in most cases, the most important decisions longtime anti-abortion a ctivist, H olmes h ad and the decisions that appellate courts defer authored articles arguing that "the woman is to," says Peter Rubin, a lawyer and president to place herself under the authority of the of the American Constitution Society. man" and comparing the pro-choice "Should we verify a class action, should we movement to Nazi Germany.) In an almost grant summary judgment-and that's the end unprecedented move, on May 1, of the case for a lot of people." District Republicans sent Holmes to the Senate floor courts can also provide political cover for without the Judiciary Committee's more conservative judges at the appellate imprimatur. and Supreme Court level by reducing the chances that those courts will be forced to Ultimately, though, what makes Holmes an reverse decisions. "One of the problems," anomaly among President Bush's district says Michael Gerhardt, a professor at the court nominees is neither his far-right William and Mary School of Law, "is, if you provenance nor the fact that he has made it don't take ideology into account in the to the Senate floor. What's anomalous about lower-court nominations, then your higher Holmes is that Democrats slowed his judges are forced to reverse more often." nomination down at all, even temporarily. While Democratic senators have waged a In Louisiana, for example, a recent Bush few high-profile battles over Bush's appointee to the Eastern District Court, Jay nominees to higher courts-for instance, Zainey-who was unanimously confirmed by Miguel Estrada, Priscilla Owen, and Charles the Senate last year despite a record as an Pickering-they have p ut up little resistance anti-abortion activist ruled against a woman to the administration's steady politicization who claims she was denied access to of the lower federal courts. "What has been abortion services while in prison. The noticed at the appellate level is also woman, known to the court as Victoria W., happening at the district court level," says had been sent to prison for a parole violation one aide to a member of the Senate Judiciary and soon after learned from the prison Committee. "It's just no one pays attention." doctor that she was pregnant. She requested an abortion but was denied; by the time of District courts are the lowest and most her release, it was too late to obtain one.

123 Victoria W. contacted a lawyer and filed suit controversial nominees. Take William in federal court, and the case came before Steele. An Alabama magistrate judge, he Zainey in April 2002. Zainey dismissed the was nominated in 2001 to the U.S. Court of case in a three-page order, refusing even to Appeals for the Eleventh Circuit. But he hear it. The decision was unprecedented. soon came under withering fire from a bevy "No federal court in the country," said of civil rights groups, who charged him with Victoria W.'s lawyer, Linda Rosenthal, "has "racial insensitivity" in a number of anti- ever held constitutional a prison policy that discrimination suits. His nomination was intentionally obstructed a prisoner's right to withdrawn, but, in January, Bush nominated terminate her pregnancy." Victoria W. is him to Alabama's Southern District Court; appealing the verdict, but that appeal will be he was confirmed by voice vote in March. heard by the U.S. Court of Appeals for the After a few years building a federal judicial Fifth Circuit, which is already record at the district level, he could be an overwhelmingly conservative and will only almost unstoppable appellate court nominee. grow more so if Bush succeeds in placing Owen and Pickering on it. By making a So far, the administration has filled 100 controversial ruling at the district level, district court seats, and, while most of the Zainey gives the higher-profile appellate nominations have not been controversial, as court room to uphold his ruling while a whole they have been at least as avoiding the taint of right-wing judicial ideologically oriented as the more high- activism. profile names at the appellate level. On the list is Paul Cassell, confirmed to the Utah The flip side works as well. A recent ruling District Court in May 2002, who previously by Sam Haddon, a Bush appointee in led a campaign to overturn the Supreme Montana, in favor of an oil- and natural-gas- Court's landmark Miranda ruling; Michael exploration company accused of violating Mills, a Mississippi nominee known for his the Clean Water Act (CWA) was overturned anti-abortion views while on the state in April by the U.S. Court of Appeals for the supreme court; and Nebraska's Laurie Smith Ninth Circuit. In doing so, the appeals court Camp, who has been an outspoken abortion- expanded the CWA's list of pollutants and rights opponent. Another frequently cited opened up the possibility of further suits- appointment is that of Ron Clark, who which reinforces its image as an excessively recently began his judgeship on Texas's liberal bench. And, paradoxically, Haddon's Eastern District Court. As a member of the ruling, which experts say represents an Texas House of Representatives, Clark put almost unprecedentedly narrow forward a series of bills to limit access to interpretation of the CWA, will likely reproductive-health services, including receive much less public scrutiny because it placing zoning restrictions on clinics and took place at the district level. instituting mandatory 24-hour waiting periods. Despite his record on abortion and Another reason district court benches matter his lack of judicial experience, he was is that they serve as "farm teams" for higher approved by a voice vote in October 2002. courts. Because appellate nominees who However, Clark was also running for come from the district courts have federal reelection to the narrowly divided Texas judiciary experience, district courts make House, and, if he had immediately accepted excellent places to cultivate future appellate the administration's appointment, he would court nominees and to park potentially have likely ceded the closely contested race

124 to a Democrat. So, with Bush's blessing, Florida's Southern District Court, the White Clark refused the appointment until after the House not only overlooked nominees put election-winning and then promptly forward by the state's Judicial Nominating resigning, an unheard of step that blurs the Commission, it also rebuffed concerns about line between the White House's political the process from Democratic Senators Bob interests and its duty to promote an Graham and Bill Nelson. Both senators independent judiciary. criticized the administration publicly for going ahead with i ts o wn n ominee, C ecilia There is no formal requirement for how the Altonaga (though, neither voted against her president nominates district court nominees; when she was confirmed on May 6). "It's a nevertheless, there are traditional checks and stunning lack of consultation with the home- balances that have evolved over the last 50 state senators," says one former Justice years, practices that are being either staffer. "For years, there was fabulous rewritten or discarded by the administration. cooperation between the senators in Florida These include ignoring state judicial no matter what the party. [. . .] We had no nominating committees, rejecting American trouble filling F loridaj udgeships with very Bar Association ratings, placing Justice qualified, nonpolitical people, and [Bush] Department political appointees in positions just ripped it up." related to judicial selection, and refusing to cooperate with home-state senators. Says Democrats, for their part, say they are so one former Justice staffer, "They have busy fighting at the appellate level that a systematically ignored bipartisan number of controversial nominees have commissions [and] ignored traditions of slipped through virtually unopposed. [. . .] consultation that were in place when we got As an example, several Democratic staffers there and have been in place for years in cite John Bates, whom Bush appointed to order to make these ideological the D.C. District Court. A former appointments and political rewards for jobs independent counsel's office lawyer under well done." Kenneth S tarr, Bates was n ominated tot he court in June 2001 and received unanimous Bush h as come under e specially heavy fire Senate approval in December of that year. for ignoring home-state senators when Soon after coming to the bench, he was making his judicial picks, reversing a assigned to hear Walker v. Cheney, in which tradition that had held since the Eisenhower the General Accounting Office (GAO) sued administration. In the past, administrations the vice president for access to documents have either allowed senators from a district's detailing meetings with energy-industry state to make nominations or have given officials. In December, Bates ruled against them broad sway in the selection, even when the GAO. That ruling, in addition to the senators are both from the opposing effectively closing off public inquiry into the party. Several states have even organized energy task force, could have a disastrous bipartisan nominating committees in an long-term impact on congressional oversight attempt to institutionalize this coordination. of the executive branch. And it proves But, in a number of instances-in definitively that a district court judge can Washington, Hawaii, Wisconsin, and have a powerful impact on the nation's Florida among others-the administration has political and legal battles-something the ignored both the senators and, in many Bush administration understands all too cases, the commissions. In the case of well.

125 Here's What Less Experience Gets You

The Washington Post Sunday, March 2, 2003 Michael J. Gerhardt

I do not know Miguel Estrada. Nor do nominees include not only Estrada, but Democratic senators. Many were Jeffrey S. Sutton (40 when first nominated confounded when President George W. to the U.S. Court of Appeals for the Sixth Bush first nominated Estrada in May 2001 Circuit), Steve Colloton (39 when to the nation's second-most powerful court, nominated to the Eighth Circuit) and the U.S. Court of Appeals for the District of Priscilla Owen (46 when first nominated to Columbia Circuit. Estrada, nominated at the the Fifth Circuit). The average age of the tender age of 39, had practiced law for less nominees awaiting confirmation to appellate than a decade. At his confirmations seats is 50.1. hearings, he said little about his judicial philosophy. After his appointment Relative youth is not the only virtue the languished in the Democratic-controlled Bush administration is seeking in its Senate and Bush renominated him this year, nominees. The people counseling Bush on Estrada appeared again before the Judiciary judicial appointments are convinced that his Committee and failed to dispel the mystery father erred in appointing some judges, surrounding his views. notably David Souter, who has become a reliable vote for the Supreme Court's Estrada has been singled out by Senate moderate wing and cast a pivotal vote for Democrats, who are filibustering to block a reaffirming Roe v. Wade. Consequently, vote on his nomination. Yet in other Bush's counselors conduct extensive respects, Estrada is not unique. Like many interviews with prospective nominees about of Bush's other appellate court nominees, he their judicial philosophies. Many of the is relatively young. Like many of these nominees have been active members of the younger nominees, he has left virtually no Federalist Society, established in the early paper t rail, m aking it difficult to attack h is 1980s to organize, cultivate and sharpen record in confirmation hearings. conservative thinking about the Constitution. Activity within the Federalist Statistics show the growing importance of Society constitutes important - and younger nominees in the selection of judges sometimes the only - evidence of a young for the nation's federal courts of appeal. In conservative's ideological commitment. the modem era, the average age of a circuit court nominee at the time of confirmation Armed with that commitment, a young has gone from a high of 55.9 years under judge might help Bush establish a President Dwight D. Eisenhower to a low of conservative legacy that could outlast his 48.7 years under the first President Bush. presidency by decades. Yet with The average age of President George W. Republicans now in control of the Senate, Bush's confirmed circuit court nominees judicial nominees have no incentive to was 50.5 during the 107th Congress, but his testify openly about their views before the more recent choices show that he wants to Judiciary Committee. follow his father's example. His circuit court

126 Democrats have seen other nominees In fact, the cycle of payback and ideological display reticence in talking about judicial agendas can be traced to the earliest days of ideology, such as during the Supreme Court the nation. Every national leader has cared confirmation hearings for staunch about the likely ideologies of nominees to conservatives Antonin Scalia and Clarence the federal bench. The only way to ensure Thomas. Since Bush mentioned during the that nomines will perform satisfactorily is to 2000 presidential campaign that Scalia and adopt reliable selection criteria, because, Thomas would be his models if he were to once confirmed, federal judges serve for life, appoint a Supreme Court justice, Democrats wield enormous power and are immune to worry that Estrada, and many of his fellow political retaliation for their decisions. nominees, would share the hostility those President George Washington selected justices have shown toward abortion rights, Supreme Court nominees based on their affirmative action, strict separation of fidelity to the new Constitution and broad church and state, and broad federal power to interpretations of federal power. President regulate the economy. Andrew Jackson based his choices on nominees' political fealty and strong support Democrats have cried foul, accusing the for state sovereignty. President Franklin D. administration and Republican lawmakers of Roosevelt sought commitment to upholding pursuing an ideological agenda that they the New Deal's constitutional foundations, never openly defend. Republicans have and President Lyndon B. Johnson wanted pointed to Estrada's sterling resume and support for the vigorous protection of civil accused Democrats of making the Honduran rights. Presidents Reagan and George H.W. immigrant - who graduated at the top of his Bush based their judicial selections in large classes at and Harvard part on nominees' variance with liberal Law School, clerked for Justice Anthony opinions and devotion to the use of original Kennedy and served as an assistant in the intent as a primary source of constitutional solicitor general's office - the latest victim meaning. of a vicious cycle of payback. In every era, senators have checked Some trace that cycle back to Republican presidents' efforts to shape the composition senators who believed that President Jimmy and direction of the federal courts. After Carter packed the lower federal courts with Republicans had forced Abe Fortas off the women who would use their judicial power Supreme Court because of ethical to advance liberal social policies. Others improprieties, Democrats scuttled his believe President Ronald Reagan poisoned would-be replacement, President Richard M. the process by pledging to appoint judges Nixon's nominee Clement Haynsworth, for and justices who would overturn liberal his own ethical lapses. Republicans blocked decisions on abortion rights and federalism - dozens of President Bill Clinton's judicial the balance between federal and state nominees, including Elena Kagan, a Harvard authority. Some view the then-Democratic law professor nominated to the same court Senate's rejection of Robert Bork's to which Bush has nominated Estrada. One nomination to the Supreme Court as a Clinton nominee, Michigan state judge watershed event for which t he Republicans Helene White, waited four years without have sought revenge. ever getting a hearing before the Judiciary Committee. Clinton's nominees were

127 opposed because of concerns about their nominees' ideologies and approaches, but propensity to read their personal policy not how they would rule in particular cases. preferences into the law. Republican senators blocked Clinton's nominees with It i s hard to s ce how t he questions E strada procedural tactics. Democrats at that time has declined to answer would jeopardize his complained that every judicial nominee was independence. He would not identify a entitled to a final vote on the Senate floor. single Supreme Court case with which he Republicans responded that the Senate's disagreed, and initially wouldn't even name failures to take final action on nominations judges he admires (though he cited three in were expressions of its constitutional writing later). Other Bush judicial nominees obligation to give its "advice and consent" have answered such questions. Reagan and on them. They also claimed that the rules of Bush White House officials asked them of the game had been constant for decades. For people under consideration for nomination. instance, President Reagan had nominated Republican senators have quizzed numerous Jeff Sessions - now a senator from Alabama Democratic nominees about the Supreme - to a federal district judgeship, but the Court precedents with which they disagree. Judiciary Committee rejected his nomination Democratic senators are now asking judicial and never forwarded it to the full Senate. nominees the same questions.

Over the past two decades, the judicial There are non-controversial answers to the selection process and confirmation battles question of which precedents nominees have become more public. Interest groups support or question. The high court's now mount campaigns on judicial unanimous 1954 decision in Brown v. Board nominations, as some groups are doing by of Education, striking down state-mandated running television ads for and against segregation in public education, is an Estrada's appointment. Bush courts obvious choice as a case to admire, while Hispanic voters by chastising Democrats for one obviously wrong decision was opposing Estrada, while few Democrats Korematsu v. United States, in which the believe that Bush genuinely cares about court upheld the forced internment of diversifying the federal judiciary. Japanese Americans on the West Coast after the attack on Pearl Harbor. Estrada's reticence raises anew the questions of what senators are entitled to know about Judicial philosophy - or ideology - matters, the views of a judicial nominee and how and nominees should be asked their they can find out. Estrada and others argue preferred approaches to constitutional that judicial canons of ethics preclude them interpretation and the criteria they would from giving answers that would indicate employ for construing Supreme Court how they would rule in cases likely to come precedent and determining errors in earlier before them as judges. The ethical rules decisions that might call for new rulings. protect judicial independence and guard The Bush administration is correct (and against judges' pre-judging matters likely to amply supported by many former come before them. Senators have largely Democratic officials) in refusing to supply (but not always) shown their respect for internal memoranda from the Justice judicial independence by framing their Department. But no one is entitled to be a questions to elicit information about federal judge simply because he or she overcame adversity, attended a fine law

128 school and collected some solid work public record, the administration has sought experience. Senators have the legitimate to make it a matter of guesswork. In the authority to weigh the judgment of a Estrada case, the administration has chosen nominee who, if confirmed, will for years be not to engage in the ideological fray, but to entrusted with the final word on many of the simply avoid it. In the elusive youthful important regulatory and constitutional Estrada, Bush has found the model judicial questions that routinely come before the candidate for an era in which ideology nation's second-most powerful court. matters deeply, so deeply that it can't be revealed. Estrada brings a golden resume. Rather than make its nominee's philosophy a matter of

129 Activist, Schmactivist

The New York Times August 15, 2004 Dahlia Lithwick

There is probably nothing I can do or say to A modest proposal, then: Let's invent a new convince you that the words "activist term right here, today, for judges or judicial judge" have no more meaning than the nominees on the right, who claim to be words "hectic smurlbats." You've heard merely "interpreting" the Constitution, "activist judges" so many times - from the even when they are refusing to impose president, from Congress, from the angry settled law; law they deem unsettled because guys on the radio - that you can define it it was invented by "liberal activist judges." right along with me. Together then: Liberal And while I am open to better suggestions, activist judges make law, as opposed to here's a tentative offering: "Re-activist interpreting it. They ignore the plain judges." meaning of texts to invent new rights. Superimposing their moral views onto their Re-activist judges are the ones trying to roll legal reasoning, they brazenly advance the back time to the 19th century. Re-activists cause of the fringe liberal elites in the are the judges who have reactivated culture wars. federalism by rediscovering the "dignity" of states. Re-activists view Lawrence v. That certainly sounds right. Justice Antonin Texas - last year's gay sodomy case - as Scalia would say it better, of course. He'd having all the jurisprudential force of a Post- make reference to the framers and toss in it note. When the United States Court of words like kulturkampf. But it hardly Appeals for the 11th Circuit upheld an matters. We all evidently believe that you're Alabama ban on the sale of sex toys last either for the liberal activist judges or month, it did so by sidestepping the logic against them. Folks on the left say they animating Justice Anthony Kennedy's protect minorities from majority tyranny, as opinion in Lawrence. Ignoring Kennedy's the Massachusetts Supreme Judicial Court lofty promises of sexual privacy - his did last year in the gay marriage decision. assurance that "there is a realm of personal Folks on the right say they act as unelected liberty which the government may not superlegislators. Folks on the left say they enter" - the 11th Circuit framed the case as are interpreting a living Constitution. Folks a dust-up over the constitutional right to a on the right say they are unmoored from any vibrator. fixed point, save, perhaps, the Harvard Law School. Re-activists like Priscilla Owen, President Bush's nominee tot he United States Court We can disagree about outcomes, but we of Appeals for the Fifth Circuit, rewrite the have, at least as a matter of political Texas parental notification statute in language, internalized the fiction that liberal abortion cases, to make it vastly harder for judges "make" law, while conservative young women to bypass parental consent. judges "interpret" it. Re-activists like another Bush nominee, Janice Rogers Brown, have called the

130 Supreme Court's shift toward defending Re-activist judges are able to present New Deal legislation in 1937 the start of themselves as "strict constructionists" or "the triumph of our socialist revolution." "originalists" by arguing, as does Justice Re-activist judges have increasingly adopted Clarence Thomas, that any case decided the view that their personal religious wrongly (i.e., not in accordance with the convictions somehow obviate the framers of the Constitution) should simply constitutional divide between church and be e rased, as though erasure is somehow a state. President Bush's recess appointment passive act. And while there is an urgent to the 11th Circuit, Bill Pryor, expended normative debate underlying this issue - energy as attorney general of Alabama to over whether the Constitution should evolve support Judge Roy Moore in his quest to or stay static - no one ought to be allowed to chisel the Ten Commandments directly into claim that the act of clubbing a live the wall between church and state. Pryor is Constitution to death isn't activism. entitled to be offended by case law barring government from establishing sectarian So, judicial re-activism. It doesn't exactly religion. But what re-activist judges may not trip off the tongue, I know. But let's put it do is use their government office to chip out there anyhow, and attempt to level the away at that doctrine. rhetorical playing field before November.

131 The Case of the Gradually Disappearing Supreme Court

The NationalJournal June 19, 2004 Stuart Taylor Jr.

July 1, 2008 - With the retirement of 88- its rules from six to five last year and then to year-old Justice John Paul Stevens today, four this year.) Whoever wins the 2008 the Supreme Court's membership dwindled presidential election will once again be to four. The remaining two liberals (Stephen under enormous pressure to pick nominees Breyer and David Souter) and two acceptable to his political base - and conservatives (Antonin Scalia and Clarence doomed to be blocked by filibusters - rather Thomas) are almost certain to deadlock on than seek a deal with opposition senators to big issues including abortion, affirmative break the logjam. action, gay rights, religion, and presidential war powers. So any tie-breaking Some even speak of a slow-motion Supreme replacement for Stevens would be in a Court suicide over the past five or six position to rewrite vast areas of decades. By steadily aggrandizing their own constitutional law. This, in turn, almost powers, both liberal and conservative guarantees that no nominee in the justices have made the Court into a wide- foreseeable future will have much chance of ranging superlegislature, imposing on the getting past the Senate filibusters that have nation the personal political preferences of blocked all eight of the men and women whichever group can get five votes in the named by the president since the retirements guise of construing the Constitution. This in in 2005 of Chief Justice William Rehnquist turn has transformed Senate confirmation and Justice Sandra Day O'Connor, at the battles into plebiscites on the nation's most- ages of 80 and 75, and the retirements in divisive issues, almost as consequential and 2007 of Justices Ruth Bader Ginsburg and bitterly contested as presidential elections. It Anthony Kennedy, at the ages of 74 and 71. has made increasingly anachronistic the traditional refusal of nominees - now seen No matter who wins the 2008 presidential as mere candidates for political office - to election, the Senate is once again likely to discuss their views. It has galvanized be so closely divided that senators in the conservative and liberal activists alike to opposing party will easily muster the 41 attack any nominee who fails their tests of votes to sustain a filibuster against any ideological purity. And when combined with nominee who does not pass their litmus the Senate's deep partisan split and the tests. And any nominee who can pass the legitimization of the filibuster as a device to Democratic test would fail the Republican block any nominee who falls shy of 60 test, and vice versa. votes, these trends have produced a stalemate that may threaten the Court's very Indeed, experts say it's conceivable that the existence. Court's membership could eventually shrink to zero, unless and until one party or the The downward spiral of partisan bickering other can muster a decisive Senate majority. over judicial nominees is rooted in the (The Court would already be out of business conservative backlash against the Warren had it not reduced the quorum required by Court's well-intentioned assumption of vast

132 and unprecedented powers to expand the fervently conservative Thomas in 1991, criminal defendants' rights, take over school he had inadvertently pushed it to the left the districts in pursuit of desegregation, redraw previous year with his first appointee, election districts, ban school prayer, and Souter. Picked because he had no publicly more. Richard Nixon, Ronald Reagan, and expressed views to galvanize opposition, George W. Bush all campaigned on vows to this " stealth n ominee" proved to be solidly put more conservative judges on the bench. liberal. And when Souter joined Kennedy and O'Connor in a 1992 opinion that largely They were only partly successful. Nixon put reaffirmed Roe v. Wade, bitterly the conservative Rehnquist and Chief Justice disappointed conservatives vowed that there Warren Burger on the Court. But he also would be "no more Souters." chose Justice Harry Blackmun, who wrote Roe v. Wade in 1973 and had become the President Clinton, uninterested in spending most liberal justice by the time he retired in political capital to mold the courts, chose 1994, and the more moderate Lewis Powell, moderately liberal judges Ginsburg and who voted with the liberals on abortion, Breyer. But this did not stop Republicans affirmative action, and religion. Stevens, a from escalating the judicial wars during Gerald Ford appointee, also ended up in the Clinton's second term by using their control liberal bloc. And President Carter stocked of the Senate and various stalling tactics to lower courts with liberals. block many qualified lower-court nominees who would have been confirmed in up-or- Reagan's first Supreme Court appointee, the down votes. ideologically amorphous Sandra Day O'Connor in 1981, ended up voting much Meanwhile, during the 1990s, the more like Powell. Reagan did make the Court conservative justices (often joined by more conservative by elevating Rehnquist to O'Connor and Kennedy) became chief justice and appointing the conservative increasingly aggressive in striking down Scalia in 1986. But Reagan's 1987 bid to civil-rights provisions and other acts of push the Court decisively to the right, by Congress based on constitutionally choosing conservative crusader Robert Bork questionable notions of states' rights. This in to succeed Powell, provoked a titanic turn fueled a liberal backlash against "right- confirmation battle that ended in a 58-42 wing judicial activism." defeat by the newly Democratic Senate. In the process, Senate Democrats made "to The second President Bush touched off a Bork" a verb and set a precedent for bitter, protracted battle with Senate opposing even eminently qualified nominees Democrats - who were spoiling for revenge solely (or at least primarily) because of by choosing strongly conservative political disagreements with their nominees for federal appellate vacancies, philosophies. Reagan ended up appointing a many of which would previously have been more moderate judge, Kennedy, who ended filled by Clinton nominees but for up joining O'Connor - and the liberals - on Republican obstructionism. The Democrats' big social issues including abortion rights, loss of Senate control in 2002 left them with religion, and gay rights. only one blocking tactic: the filibuster, which had never before been systematically Similarly, while the first President Bush used to block, on ideological grounds, pushed the Court to the right by choosing

133 nominees who would otherwise have been confused that opponents felt safe to confirmed. And filibuster they did. filibuster.

In the 2004 campaign, with the Supreme This made almost inevitable the filibusters Court closely balanced on issues including in 2005 of the first two nominees to replace racial preferences, gay rights, abortion Rehnquist and O'Connor, and then of the rights, and religion, Bush and John Kerry second two. Nor was it a great surprise when were implored by their conservative and the president - vowing never to "knuckle liberal bases to pledge to put on the Court under" on a "core presidential prerogative" - only people who had publicly espoused spurned proposed trades in which the Senate views rejecting (in Bush's case) or would confirm one nominee of his choosing embracing (in Kerry's case) Roe v. Wade. and another picked by the other party. By the campaign's closing weeks, each candidate had come very close to doing just This uncompromising stance kept the that. Even moderate centrists, and Souter- president's political base happy. It also had like "stealth" candidates, were off-limits the not-unwelcome side effect of insulating and, in any event, unconfirmable, because from any further Supreme Court second- conservative and liberal groups were guessing the president's claims of vastly determined to avoid the kind of surprises expanded power to override the Bill of that Blackmun, Stevens, O'Connor, Rights and congressional constraints in the Kennedy, and Souter had given name of the war against terrorism. Since the Republicans. Court began shrinking - to seven members in 2005, five in 2007, and now a stalemated The winner of the 2004 election was thus four - both its prestige and its will to take on committed to choosing nominees who were a wartime president have diminished. "I sure to be blocked by filibusters. And the can't say I miss them much," the president widespread assumption that a Hispanic has reportedly said of the departed justices. nominee could skate through because of the opposition party's fear of offending a key So at a time when we desperately need a voting bloc proved incorrect. By the time judicial check on executive power, the ideological opponents had finished trashing justices - with a push from the president and every controversial aspect of every the Senate - may have taken themselves out nominee's record, in multimillion-dollar ad of the game. campaigns featuring distortions and denunciations by various Hispanic "leaders," Hispanic voters were so split and

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