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Conservatives to Spike the Supreme Court? By: Henry Mark Holzer
FrontPageMagazine.com | Tuesday, October 31, 2006


For several months we’ve been hearing the mantra that most Republican congressmen don’t deserve to be reelected because the party’s record in Congress is far from a conservative one, especially when one considers runaway spending, huge deficits, ignored scandals, successful filibusters, pro-terrorist legislation, and more.

At the same time, we’ve heard sincere pleas from conservative leaders and commentators that, nevertheless, Republican voters should "hold their noses" and return GOP majorities, no matter how narrow, to the House and Senate.

The principal justification given for what some consider to be a compromise with conservative values (but in reality is not), is that no matter how bad the Republican legislative performance has been, the Democrats are going to be far worse. For conservatives, that’s certainly true. Inevitably, the Senate Majority Leader Harry Reid and Speaker of the House Nancy Pelosi domestic agenda will be disastrous, especially for the economy (e.g., rescinding tax cuts). Their foreign affairs policies will surely endanger national security (e.g., abruptly pulling the plug on Iraq).

But even worse is that if Harry Reid becomes Senate majority leader, and if 87-year-old Justice John Paul Stevens leaves the bench (actuarially, a real possibility), conservatives can kiss goodbye – for at least two years and maybe longer – any chance of obtaining that one crucial seat on the Supreme Court which, with Roberts, Scalia, Thomas, and Alito, could have a profound effect on both domestic and foreign policy for years to come.

If this double whammy occurs – Reid running the Senate, and Stevens leaving the bench – there will be a battle for Stevens’s seat (and thus for the soul of the Court), that will make the Clarence Thomas confirmation fight of 15 years ago look like a walk in the park.

Like the Thomas fight, the one to fill Stevens’s Supreme Court seat will be a battle that conservatives must win if they don’t want to see more decisions like the following – for which Stevens was largely responsible:

  • Upholding the McCain-Feingold law’s suppression of political speech;
  • Abolishing the death penalty for young killers;
  • Seizing private property for "public purposes" through eminent domain;
  • Approving the use of race as a criterion for higher education admissions;
  • Providing enemy combatants with habeas corpus, due process, and court access; and
  • Invalidating President Bush’s Guantanamo military tribunals.

It is a cliché to observe that we live in perilous times. But cliché or not, the fact is that we do. Pakistan’s unstable government already has atomic weapons. Despotic North Korea may be close to having atomic weapons. The Iranian theocracy is feverishly seeking atomic weapons. Al-Qaeda is trying to buy or steal atomic weapons.

The military and foreign policy implications of atomic proliferation are almost too scary to contemplate. They will present colossally important and difficult questions of constitutional law for the Supreme Court to resolve – such as in meeting atomic threats, how far the president’s Article II powers extend without consultation with Congress.

Also on the table are other questions of presidential power, of congressional power, and – always – of judicial power, especially in America’s current battle with Islamic terrorists.

Indeed, the preliminary judicial skirmishes in that battle – the Hamdi, Rasul, Padilla, and Hamdan cases, dealing with enemy combatants, habeas corpus, due process, access to courts, and military tribunals – have been just a warm up for what’s to come.

Those cases presented questions of presidential power to wage war under Article II of the Constitution, and although the President won a few rounds, he lost a few as well. The cases also examined the power of Congress, and its constitutional role in modern, asymmetrical warfare. And some lawyers believe, with good reason, that the Court’s tilt in those four cases was, on balance, away from presidential power and in favor of Congressional power.

Now, with the enactment of the Military Commissions Act of 2006, new constitutional questions have arisen, chief among them whether the "due process" that Congress has provided enemy combatants is adequate. While there are those of us who believe the Act provided too much – see "Khalid Sheik Mohammed is Not O.J. Simpson: Military Commissions Act of 2006" – not surprisingly, there are those like the ACLU who believe it provided too little, and that Islamic terrorist murderers should be treated with the kid gloves afforded defendants in the American criminal justice system.

America’s national security has already suffered enough from Justice Stevens. We cannot afford another such appointment. Especially with national security constitutional questions such as warrantless surveillance still to be resolved.

If Stevens leaves the bench in the next two years, even if the president wants to make quality appointments like his of Chief Justice Roberts and Justice Alito, George H.W. Bush’s of Justice Thomas, and Reagan’s of Justice Scalia, the president will be stymied if Harry Reid controls the Senate. Indeed, even if Reid doesn’t, the Republicans will need a majority leader who, unlike Bill Frist, has the spine to break an inevitable Democratic filibuster if the nominee is a strong conservative.

That’s why this notion that conservatives should "punish" right-leaning leaders for their real and imagined shortcomings is akin not merely to political suicide, but invites at least one Supreme Court appointment that in national security cases like warrantless surveillance could tip the already closely balanced scales against the country’s war with Islamic terrorists and seriously endanger the survival of the United States.

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Henry Mark Holzer, Professor Emeritus at Brooklyn Law School, is a constitutional lawyer and author most recently of The Supreme Court Opinions of Clarence Thomas, 1991-2006, A Conservative’s Perspective.



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