I find myself thinking this again in light of George Will's recent twitting of John McCain.
Ah, George Will. Can you summarize him in three words? I can: prissy, snippy, effete.
And so McCain rightly expresses outrage at the Supreme Court's latest stupid ruling, but Will finds a way to diss him for it. And that's fine; every regular reader will know that I have no great love for John McCain. In fact, about the only bumper sticker I can imagine displaying during this election would say something like:
McCain
Regrettably Necessary
Regrettably Necessary
HSAT, here's Will, making McCain look stupid and all that. And I think, "Sure, whatever; Will doesn't care much whether McCain wins, or whether arguably the most powerful position in the world is held by an unqualified, unprepared, radically-liberal, racist-friendly gasbag. Either way, his job is secure."
I've often thought that. I've been forced to think it of Rush Limbaugh, with whom I usually agreed back when my schedule let me listen to him. Rush talks; he talks, and that's what he does. Talks. Talks to people who really do care, and who are energized and get up and do things — but he doesn't, much. Because talking is what he does, and it's just about all he does. He does it well, but he does it almost exclusively.
And that's punditry. Smash liberalism verbally, and your audience loves you. And if the liberals win, and further destroy America? No matter: your audience will love you all the more, because they'll need you all the more to help them keep their sanity, and to say out loud what none of the MSM outlets nor "leaders" are saying.
So: horrible government, or golden government. To the pundit, either way is fine. Because you have a lot to talk about either way. And talking (or writing) is what you do.
Someone may say, "Isn't it like that for the pastor?" Yes, and no. But that is perhaps a topic for another post.
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16 comments:
nucular nucular nucular
I like the bumper sticker.
No No No
"Smash liberalism verbally"? Ha, here the 5 majority justices (liberal though they normally are) were actually acting conservatively! Praising God for that decision, I cannot even imagine the level of harm that could have resulted if it had gone the other way.
Dan,
If you have some time to read the dissenting opinions by CJ Roberts J. Scalia, do it. They both really show the gymnastic jurispudence that the majority had to use to reach their opinion.
As for McCain's chacterization of the opinion, he may have had a motive for saying it, but it was not an extravagant characterization. McCain is right and Will is wrong.
In fact, Scalia ended his opinion by saying, The Nation will live to regret what the Court has done today.
I couldn't agree more. Love the bumper sticker by the way.
Cindy,
How was the SCOTUS acting conservatively?
This was a judicial nullification of procedures (first the DTA, then the MCA) carefully crafted by both elected branches of Government of procedures carefully tailored to allow review of detentions while remaining mindful of the terrorist threat.
The SCOTUS in the Hamdi decision asked Congress to establish procedures for detainees. That's what they did. And in actuality, the SCOTUS declined to review the DC Circuit Court's affirmation of the MCA, but then 5 months later towards the end of their 07 term, they changed their mind.
The DTA (now, essentially debunked) provided for hearings on the legality of detention before a review tribunal followed by a review in the DC Court of of Appeals. A bipartisan Congress mandated that these Gitmo detainees are not free to avoid these procedures by filing a habeas petition in whatever district court they choose!
Centralizing court review with the DC rather than letting lawyers go to friendly habeas judges before a commission could review the evidence was the heart of the law which the SCOTUS overturned!
The ACLU will prepare petitions in blank to seek on behalf of every terrorist captured overseas to compel the Government to immediately disclose its evidence. Think of it, and CJ Roberts pointed this out, the potential of free access to classified information.
The Bank Robber is entitled to see the prosecution's file because he needs it to defend himself. The terrorist wants his file so he can arrange the murder of operatives and informants. (Information given to defense lawyers in the first World Trade Towers trial on a restricted basis quickly appeared on al-Jazeera.)
Justice Jackson warned us, which I think the dissenters pointed out: ,don't convert the Bill of Rights Into a Suicide Pact! Jackson said, "If the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the Bill of Rights into a suicide pact."
Justice Jackson refused to grant a Nazi prisoner habeas because there has been no instance where an alien who has never set foot in American soil has been granted habeas. Justice Souter in his concurrent opinion with the majority, agrees, this is the first time the SCOTUS has granted habeas to non-citizen enemy combatants and he doesn't seem to be bothered by it!!
Carlo, they acted conservatively in that rather than make a judicially activist decision based on desired outcome, they decided to do the job of their particular branch of our democratic system, and rule on the law (and narrowly), which was not silent on this issue -- see the "Merit Briefs - the Detainees" section here, thus protecting our Constitution and democratic system of separation of powers from changing it to suits ones purposes. The Kennedy decision, which I won't link to b/c it's a long pdf, can be found here:
http://www.scotusblog.com/wp/wp-content/uploads/2008/06/06-1195.pdf
Under Bush we've had some serious violations of the Constitution in the name of fighting the WOT that could come back to bite us. Our democratic system works fine w/it's checks and balances, and it's just crazy that we're fighting to protect it by increasingly relinquishing it. Makes no sense.
This decision was about one thing only: habeas corpus.
Tell me where Cindy where in the Constitution where it says that aliens or enemy combatants captured outside of American soil in the battlefield or other places thousands of miles away are guaranteed habeas corpus?
What "serious violations" of the Constitution were there? Oh, by the way, you'll have to add under a bipartisan Congress, not just "under Bush" because the DTA and MCA were passed in bi-partisan numbers in Congress. President Bush just didn't do this on his own. He asked Congress to pass the AUMF, DTA and MCA.
President Bush has actually shown more forebearance than President Lincoln. When President Lincoln suspended habeas corpus and the federal court overturned his decision to suspend habeaus corpus, he said, ta heck with you.
I've read all opinions including the majority, concurring and disenting opinions. But thanks for the link anyway.
The SCOTUS actually overstepped their authority in reviewing the DTA because Congress exercised their constitutional authority to limit the jurisdiction of the federal court. Justice Scalia correctly argued that that the DTA unambigiously stated that as of the date of passage no justice or judge or court would have jurisdiction to consider habeas applications of Gitmo detainees.
I would recommend for your reading Article III Section 2, which states that: "Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."
So, the Supreme Court says, ta heck with the Constitution.
By the way, Sen. Kerry just said that Osama bin Laden has habeas corpus if he was ever caught by troops abroad. And you know what, he accurately states what the SCOTUS has just ruled. All the ACLU backed terrorist lawyers need to do, like I said, is find some friendly habeas BDS judge who was captured in battle or wherever in Timbuktu and declare he is being illegally detained, if the judge is friendly enough or stupid enough, he can grant it.
Anyone questioning whether they want to throw their vote on a third party or vote for Obama better really think hard.
A bipartisan Congress mandated that these Gitmo detainees are not free to avoid these procedures by filing a habeas petition in whatever district court they choose!
This really does overstate the case for the DTA by interpreting the law quite liberally. The detainee treatment act was passed as an amendment to a bill designed to fund military operations for FY2006 and provide emergency relief to victims of the southern hurricanes in 2005. I'd like to know what the actual vote was on the amendment, not on the overall appropriations bill. I suspect it was a very partisan amendment pushed by republicans and opposed by most democrats. That does not qualify as bipartisan in my book.
Additionally, constitutional scholars disagree as to whether Congress can limit the Court's ability to hear cases by passing a defense appropriation bill and sticking an amendment on it. It is also questionable as to whether habeas corpus falls under the category of appeals or original jurisdiction. Congress may NOT change the court's original jurisdiction by any means other than a constitutional amendment.
The way I read the constitution, habeas corpus is a right guaranteed in Article I and may not be suspended except as follows:
The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.
The current war on terrorism does not meet this standard.
Additionally, nowhere does the constitution specify that habeas rights apply only to US citizens. One must read that into the constitution in good liberal fashion.
Finally, Gitmo is US territory, thus the prisoners there making habeas petitions are under US jurisdiction and the jurisdiction of the US Supreme Court.
The SCOTUS has made the correct decision and made our republic stronger and safer by not permitting the watering down of our rights by political ideologues.
SDG
Rob: Additionally, nowhere does the constitution specify that habeas rights apply only to US citizens. One must read that into the constitution in good liberal fashion.
Once again, my hard earned tax dollars at waste in higher learning institutions. Again, this is another straw man argument, since I never said, that habeas corpus applies only to US Citizens.
Justice Souter:JUSTICE SCALIA is thus correct that here, for the first time, this Court holds there is (he says “confers”) constitutional habeas jurisdiction over aliens imprisoned by the military outside an area of de jure national sovereignty,
see post, at 1 (dissenting opinion).
In plain black and white, the Court admits, for the first time it is going to hold there is habeas corpus for any enemy combatant held anywhere outside the United States. I fail to see how granting an enemy combatant outside the United States, and now not just held held in Gitmo, but anywhere, the right to habeas corpus makes the United States "safer."
Did we make the nation safer after prosecuting the first World Trade Center bombers? So, if Khalid Shaikh Mohammed (who by the way was behind the first World Trade Center attack) went to a habeas corpus friendly judge and demanded released from detention after a year or two before we got some other important information after 4 years of detainment(his confession of masterminding of: 9/11, the Richard Reid shoe incident, Bali nightclub bombing, and the 93 World Trade Center) how does that make our nation "safer" and "stronger?"
What makes our nation stronger and safer are preeminent attacks before an attack happens to us. There has been no attack on the US since 9/11 because the war is being fought in Afghanistan and Iraq and other places.
If a liberal is elected President, our nation won't be safer...but Osama bin Laden if he is captured will have habeas corpus! Whew, that's a relief!
What makes our nation stronger and safer are preeminent attacks before an attack happens to us. There has been no attack on the US since 9/11 because the war is being fought in Afghanistan and Iraq and other places.
This is just pure spin. There were no attacks between the first WTC bombing in 1993 and 9/11, either. The lack of terrorist attacks since 9/11 is not related to waging an unholy war in Iraq. Period.
So, if Khalid Shaikh Mohammed (who by the way was behind the first World Trade Center attack) went to a habeas corpus friendly judge and demanded released from detention after a year or two before we got some other important information after 4 years of detainment
This is hypothetical gobbledygook. Your argument might make sense if we got that information BEFORE any of those terrorist events happened, not after the fact.
Blind ideology, there's the real waste....
Well, we all know that our constitution implements a separation of powers in our government, whereby the Three Branches impose "checks and balances" on each other.
OK, fine. Sounds reasonable. Both the Executive and the Legislative are often overruled by the Judicial, the Executive vetoes the Legislative, the Legislative makes laws restricting the Executive.
What I wanna know is what checks and balances are effected on the Judicial? It seem that the Judicial can decree anything it wants to be constitutional or unconstitutional, regardless of what the constitution actually says, and we have to just take it, because there's nothing we can do short of the extraordinary action of amending the Constitution.
At what point should the citizens just start ignoring the pontifications of the court?
What I wanna know is what checks and balances are effected on the Judicial?
The legislative branch exercises a check on the judicial branch via the budgetary process (it can cut or alter the budget, eliminate courts, etc...) and through the confirmation process. It can also amend the constitution the way the framers intended for change to occur.
The executive also has a check on the judiciary through the use of appointments and the enforcement power. Hamilton wrote that the court has no power to enforce its decrees, only the power to make judgment. That is still true today.
At what point should the citizens just start ignoring the pontifications of the court?
This is an interesting question but ultimately boils down to political views. If the court renders a decision you agree with then you're fine obeying it. If it issues one you disagree with then you ask when the citizenry should ignore the court.
Our system is based on the rule of law and courts are supposed to be neutral arbiters. Unfortunately, as Justice Scalia says, both conservatives and liberals have worked hard to politicize the court. When that happens the people will try and seize control of the institution and bend it in such a way as to have their preferences issued as judicial fiat. It really is nothing new...Jefferson accused Marshall of "twistification" of the constitution, Jackson refused to enforce a court decision, and Eisenhower all but ignored the court in Brown v. Board until 1957.
If we, as a population, begin to ignore orders of the court we do not like then that will truly be the beginning of the end of this great nation. Imagine if the supporters of Al Gore had ignored the court in 2000 and taken to the streets in outright rebellion when the five conservatives anointed W as the heir apparent?
> The legislative branch exercises
> a check on the judicial branch
> via the budgetary process (it can
> cut or alter the budget,
> eliminate courts, etc...)
I'm probably just being over-cynical, but what if the Court rules that the legislature must fund the Judicial branch to levels that the court determines essential?
> It can also amend the
> constitution the way the framers
> intended for change to occur.
Again, cynically, it seems the Court can determine, through "penumbras" and "shadows" of linguistic interpretation, what the meaning of any part of the Constitution is, including the amendments.
> Hamilton wrote that the court has
> no power to enforce its decrees,
> only the power to make judgment.
> That is still true today.
If only it were still true today.
The American populace seems to have deified the judgments of the Supreme Court these days, effectively making the Legislature and Executive powerless to do anything but Obey, no matter how ridiculous the ruling.
> If we, as a population, begin to
> ignore orders of the court we do
> not like then that will truly be
> the beginning of the end of this
> great nation.
I mostly agree with this, but I'm thinking that if a significant enough portion of the populace got to thinking that the government wasn't anymore governing by the consent of the governed, and something needed to be done about it, then maybe this Great Nation will have had already come to an end, with the beginning of a new one in progress. That's how we progressed from being British subjects to being Americans, isn't it?
> Imagine if the supporters of Al
> Gore had ignored the court in
> 2000 and taken to the streets in
> outright rebellion when the five
> conservatives anointed W as the
> heir apparent?
Well they didn't, so maybe our great nation is still perceived by the people to have some life left. Heck, we even still have the freedom to use hyperbole like saying the court "annointed" instead of "ruled."
but I'm thinking that if a significant enough portion of the populace got to thinking that the government wasn't anymore governing by the consent of the governed
That's nice in theory but the reality is we have never been governed by the consent of the governed...unless one defines consent as apathy. We are governed by two political parties who make all the rules, choose the possible leaders from amongst their elites, and then ignore what the governed want for the most part to deliver favors for their pet constituencies. Then they change the rules to ensure that we can't do a darn thing about it even if we cared...which most of us don't.
Dan, here's the bumper sticker for you.
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