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