Big Lizards:Blog:Entry “Supreme Court Gitmo Case: Sen. Joe Biden Is Right!”

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June 12, 2008

Supreme Court Gitmo Case: Sen. Joe Biden Is Right!

Hatched by Dafydd

(We pause a moment while readers locate their jaws, rolling around somewhere on the floor, before continuing...)

Yes, I completely agree with Sen. Joe Biden's (D-DE, 75%) commentary on the Boumediene v. Bush Supreme Court decision released today... actually, with part of Biden's commentary. Well, to be perfectly blunt, I agree 100% with the last two sentences of Biden's statement:

As we look forward, we must take stock that this decision was five Justices to four. If one more Justice in the mold of Chief Justice Roberts or Justice Alito is appointed to the Court, decisions such as this will likely come out the other way.”

Yes sir. One more justice. Contrarywise, if one more justice in the mold of Justices Ruth Bader Ginsburg or Stephen Breyer is appointed to the Court, decisions such as this will likely become commonplace.

Many conservatives wish someone less friendly to illegal immigrants had won the GOP nomination. They could never quite settle on who they wanted; nevertheless, many now threaten to sit out the election, forcing an Obama victory, in order to teach the rest of us a good, hard lesson -- bow to their wishes, even when they themselves can't decide what those wishes are.

I would like to address those conservatives directly: You have now seen what radical judges can do and how devastating that can be to the national security of the United States. You may very well see, in the next administration -- particularly if those "sitting out" get their way -- the federal courts order the release of top al-Qaeda terrorists back into the wild.

Five justices voted in the majority in Boumediene:

John Paul Stevens is 88 years old; he was nominated by the unelected and very liberal Republican Gerald R. Ford. I cannot prove this, but I strongly suspect that Ford, like other liberals (Republicans and Democrats), believed in an activist judiciary, given his generally liberal politics;

Ruth Bader Ginsburg is 75; she was nominated by President Bill Clinton;

Anthony Kennedy is 71; is the only justice in the majority nominated by a conservative president, Ronald Reagan;

Stephen Breyer is 69; he was nominated by President Bill Clinton;

David Souter is 68; he was nominated by liberal Republican George H.W. Bush.

Note I listed them in order of age. Think about this: Nobody lives (or serves) forever; and it's hardly a revelation that the older a justice is, the more likely he or she is to leave the Court -- vertically or horizontally -- through simple old age.

All five justices in the majority are senior citizens; three are in their seventies or eighties (Stevens is getting close to his nineties). By contrast, three of the four dissenters is in his fifties; only Antonin Scalia is in his seventies. But there is a very good chance that the next president will replace at least one, probably two, maybe even three justices... mostly liberal judicial activists. It will be an extraordinary opportunity to shape the Court for literally decades to come... and one conservatives will only get if John McCain beats Barack H. Obama in the elections on November 4th.

Nominating Kennedy is probably the worst decision Reagan made while in office -- definitely worse than Iran-Contra. Nevertheless, Kennedy is a "swing" vote on the Court, often siding with the conservative side. Sadly, he chose this case as one where he would swing back to the left. Kennedy is a classic case of a justice who "grew" (became more liberal) in office.

Not so David Souter, who was known to be quite liberal -- and a judicial activist -- even before his appointment; he was championed by the liberal New Hampshire Republican Sen. Warren Rudman and the even more liberal former New Hampshire Sen. John Sununu, who had become George H.W. Bush's Chief of Staff. Bush-41 might have been rolled, but it wouldn't have taken much rolling.

By contrast, those dissenting justices who voted against the Boumediene decision were (also in order of age):

Antonin Scalia is 72; he was nominated to the Court by Ronald Reagan;

Clarence Thomas is 59; he was nominated to the Court by George H.W. Bush (somewhat redeeming Bush-41's appointment of David Souter);

Samuel Alito is 58; he was nominated by George W. Bush (Bush-43);

John Roberts is 53; he was nominated to the bench by George W. Bush (Bush-43).

All four of these justices were nominated by Republicans; by contrast, both justices nominated by Democrat Clinton voted to give -- not "recognize," but give for the very first time in our history -- habeas corpus rights to enemy combatants captured and detained abroad.

Three of the four dissenters were nominated by presidents who openly and proudly supported judicial restraint. In very stark contrast, three of the five in the majority were nominated by presidents who actively supported judicial activism; one was nominated by a president who appears to have had no opinion on judicial activism vs. restraint; and only one was nominated by a president who supported judicial restraint (and that one, Anthony Kennedy, is the least ideologically liberal of the majority).

Clearly, what matters most to the direction taken by the Supreme Court is which president nominates the justices: Liberal presidents invariably nominate judicial activists to the bench; conservative presidents generally nominate judicial conservatives to the bench. But some conservatives still want to sit out this election -- to teach us a good, hard lesson.

Finally, of the two nominees for president today, we have this:

John McCain has pledged to nominate justices in the mold of John Roberts and Samuel Alito and has praised Clarence Thomas and Antonin Scalia. McCain has condemned the Boumediene decision:

These are unlawful combatants, they’re not American citizens, and I think that we should pay attention to Justice Roberts’s [dissenting] opinion in this decision. But it is a decision the Supreme Court had made, and now we need to move forward.

In extremely stark contrast, Barack H. Obama has pledged to nominate justices in the mold of Ruth Bader Ginsburg and Stephen Breyer -- the two most ideological, doctrinaire leftist, and judicially activist justices on the Court. In addition, Obama has widely and categorically praised the Boumediene decision today (same NYT article linked above):

Today's Supreme Court decision ensures that we can protect our nation and bring terrorists to justice, while also protecting our core values. The Court's decision is a rejection of the Bush Administration's attempt to create a legal black hole at Guantanamo - yet another failed policy supported by John McCain. This is an important step toward reestablishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus.

There is virtually no question but that McCain would nominate justices who would have ruled against Boumediene, while Obama would nominate justices who would rule for the terrorist detainees having full-blown trials in civilian criminal courts... with the full panoply of rights previously extended only to persons residing under American sovereignty.

What does this mean in practice?

Barack H. Obama wants every enemy combatant captured on the battlefield to be allowed to have an attorney of his choosing, even if he chooses an al-Qaeda lawyer... or else the enemy combatant must immediately be released upon the decision of the first District Court judge (or the next, or the next) who hears his habeas petition.

Obama wants every enemy combatant captured on the battlefield to have the right to demand all intelligence information, no matter how heavily classified, be handed over to his attorneys... or else the enemy combatant must immediately be released.

Obama wants the terrorist attorneys of every enemy combatant captured on the battlefield to have the right to endlessly subpoena military commanders up to and including Gen. David Petraeus, commander of CENTCOM, forcing these commanders to drop everything and return to America to testify in the habeas hearing... or else the enemy combatant must immediately be released.

Obama wants endless appeals and reappeals of any decision that goes against any enemy combatant captured on the battlefield... appeals over and over of the same issues, whenever the terrorist attorney can find yet another friendly federal judge. (Think that won't happen? Think of what happens whenever a death-row murderer gets close to his execution date. Imagine mass candlelight vigils led by prominent Democratic politicians demanding the release of Khalid Sheikh Mohammed, Ramzi Binalshibh, and Abu Zubaydah.)

And if Obama is elected president, with this Congress or the next likely one, he will have the power to get everything he wants.

But some conservatives still want to sit out this election. To teach us a good, hard lesson: Bow to our wishes, or like Samson, we will pull the temple of America down upon all our heads.

I beseech you, in the bowels of Christ, think it possible you may be mistaken.

-- Oliver Cromwell, Letter to the General Assembly of the Church of Scotland, 1650

If one more Justice in the mold of Chief Justice Roberts or Justice Alito is appointed to the Court, decisions such as this will likely come out the other way.

-- Joseph Robinette Biden, jr., unintentional truth blurted out in response to the Boumediene decision, 2008

Think. Please. Think.

Hatched by Dafydd on this day, June 12, 2008, at the time of 6:04 PM

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» Lizards Propose U.S. Constitutional Amendment from Big Lizards
I rarely support proposed federal constitutional amendments; most offer permanent solutions to transient problems, threatening to lock in today's compromise for all time. For exampe, I reluctantly supported the Equal Rights Amendment -- twenty years ag... [Read More]

Tracked on June 13, 2008 2:20 PM

Comments

The following hissed in response by: Nathan

I rather doubt, in the aftermath of this ruling, that the American military will retain custody of future detainees; they'll be turned over to whatever allies can be trusted to hang onto them. That's a less than optimal outcome for everyone involved, the detainees included.

The above hissed in response by: Nathan at June 12, 2008 8:13 PM

The following hissed in response by: hunter

We will go back tot he original Geneva Convention and just summarily execute the non-uniformed prisoners in the field.
McCain is partially to blame for this, with his naive stand on interrogation. he and Graham weakened the Administration's well thought out policy on unlawful enemy combatants, and helped fuel the delusion that Bush was roughshod, stomping on prisoner rights.
but even if he was doing that wholesale (and he was not), the Court has no place at all deciding to amend the Constitution.
Kennedy is a pitiful man.. he is too young to hide behind the excuse of senility.
He is an example of the banality of evil.

The above hissed in response by: hunter at June 12, 2008 10:36 PM

The following hissed in response by: Ken Hahn

I have a dilemma over McCain. I don't trust him. Every time the Democrats convince me to vote for him, he does something to persuade me to sit this one out. From illegal immigration to the gang of 14 to McCain-Feingold to "global warming" he has taken a leftist position. I'd really like to have another Reagan or Goldwater but I get the feeling we're looking at another Ford or GHW Bush. Can we trust McCain? Nothing I have seen has convinced me that we can.

The above hissed in response by: Ken Hahn at June 13, 2008 3:14 AM

The following hissed in response by: Chris Hunt

You may not trust McCain, but I trust Obama. I trust him to drag the country as far leftward as he can. I trust him to try to implement all of the socialist policies he espouses. I also trust him to fill the federal apparatus with people who think like he does. People who will be in positions of power for decades. People who will be influencing this country well after he has shuffled off of the political scene.

This is the real problem with the scope of the federal government. The stakes are too high, the elections too fraught with peril. The people that Bill Clinton put into authority crafted policies that ultimately led to 3000 dead civilians and hundreds of billions of dollars of economic damage to the country. This is the price of wrong policies, which spring from the ideological backgrounds of the people who put them into practice.

The above hissed in response by: Chris Hunt at June 13, 2008 6:05 AM

The following hissed in response by: Dafydd ab Hugh

Ken Hahn:

Can we trust McCain?

I don't know what you mean by "trust." To do what?

McCain has several areas where he differs from other conservatives; but they are well defined and well known: He will probably work to find a path to legalization for illegals; but he's not suddenly going to become pro-abortion or anti-Iraq war.

Can you "trust" him? Depends on what you expect or demand. You can certainly trust him to nominate judges he believes are in the mold of Roberts and Alito... but not, perhaps, to support the "nuclear option" for preventing filibusters of judicial nominees.

But if it's any help, I'll tell you this: You can absolutely trust Barack H. Obama 100%. But not, perhaps, the way you would prefer:

You can utterly trust Obama to lose the war;

You can definitively trust him to raise taxes and increase onerous regulation of, well, everybody and everything;

You can unquestionably trust him to push through socialized medicine, double the minimum wage, and implement European-style "hate-speech" laws;

You can trust him to overturn the ban on partial-birth abortion, to ram same-sex marriage through, and do his level best to completely secularize America without regard for what that might do to the morality of Americans;

You can perfectly trust him to ensure that there are no more nuclear power plants, no gassification of coal, no mining of shale for oil, and not a single drop of new oil pumped from anywhere in the United States -- or even from nearby international waters -- or any other form of new energy.

(This is "Jimmy Carter's second term;" you'll have to make do with less, sit home in the dark, and not go anywhere: We'll diet our way out of energy starvation.)

And of course, you can categorically trust him to appoint judges and justices of the Supreme Court in the mold of Ginsburg and Breyer, because he flat-out told us so.

On those and other similar points, you can trust Barack H. Obama with your life.

And you will.

Still not sure about voting for McCain?

Dafydd

The above hissed in response by: Dafydd ab Hugh at June 13, 2008 6:08 AM

The following hissed in response by: David M

The Thunder Run has linked to this post in the - Web Reconnaissance for 06/13/2008 A short recon of what’s out there that might draw your attention, updated throughout the day...so check back often.

The above hissed in response by: David M at June 13, 2008 10:17 AM

The following hissed in response by: nk

I seriously doubt that McCain would knowingly appoint any judge who would hold that a U.S. naval base is not U.S. sovereign territory. If you know what I mean and I think you do.

And that part of the decision I totally agree with. Guantanamo is U.S. sovereign territory. The administration's argument that it is not is ridiculous.

The above hissed in response by: nk at June 13, 2008 10:30 AM

The following hissed in response by: ~brb

I have to agree with Hunter on this one. The net result of this decision will be that a lot more non-uniformed enemy combatants, insurgents, guerillas, and other irregulars will "choose death over surrender" or be "shot while trying to escape." The numbers of enemies captured will go down and the body counts will go up. In the end, this decision will only make things worse for our enemies and anyone who happens to be near them, as our soldiers decide there's no point in trying to take them alive so they may as well lob in a few white phosphorous grenades or call in an air strike.

The above hissed in response by: ~brb at June 13, 2008 11:20 AM

The following hissed in response by: AMR

Yep, there will be fewer prisoners captured for the next 7 months with an unofficial ROE gleaned from the Greatest Generation.

If Mr. Obama is elected, I suspect an attack on the US will be forthcoming; either because of his perceived policies of appeasement or to test him. He is judged as weak since our enemies apparently like him; an incorrect perception of JFK almost developed into a nuclear war during the Cuban Missile Crisis. The Democrats complained of the 7 minutes where Mr. Bush didn’t visibly react to the knowledge of the 9-11 attacks whereas Mr. Kerry was immobilized for 40 minutes. I wonder how long Mr. Obama will be immobilized, assuming he is not incinerated by a terrorist blast in D.C.

Fear and respect go much further in surviving world and playground politics than being liked. When viewing Mr. Obama’s public persona, he apparently learned nothing from the Chicago political playground.

The above hissed in response by: AMR at June 15, 2008 7:34 PM

The following hissed in response by: Consul-At-Arms

I've quoted you and linked to you here.

The above hissed in response by: Consul-At-Arms at June 16, 2008 10:40 PM