Sunday, June 15, 2008
SCOTUS moderates are no virtue
For those who value national sovereignty and a restrained judiciary, the recent Supreme Court decision in Boumediene v. Bush can only be described as appalling. The court decided that U.S. procedural legal rights extend to foreigners detained in combat and held overseas. Every POW the United States takes from now can plausibly claim the right to American federal judicial review. A court order directing a U.S. military commander to immediately release all his POWs (on threat of being jailed for contempt of court) is entirely possible.
This decision highlights the problem of moderate Republicans. Some conservatives argue that we need to support moderate republicans as they are more electable and they are better than the alternative of liberal democrats. This is the “half a loaf” argument. The problem with this line of thinking is that it gives us appalling Supreme Court Justice choices.
The Boumediene decision was a 5-4 matter. The four justices who voted against the extension of habeas corpus rights to overseas foreigners were Scalia, Thomas, Roberts and Alito. All four dissenters are explicitly conservative in their judicial philosophy and were supported, if at all, only reluctantly by the moderates.
The five justices who voted for this travesty are Stevens, Kennedy, Souter, Breyer & Ginsburg. Breyer and Ginsburg were Clinton nominees and are explicitly liberal. However, Stevens was appointed by Ford, Souter was appointed by George H.W. Bush, and Kennedy was appointed by Reagan. These three are best described as “liberal” “liberal” and “swing vote” - in that order.
Moderate Republican Gerald Ford appointed Stevens. Moderate Republican Warren Rudman was the chief proponent of Souter and assured George H.W. Bush that Souter was in fact a conservative.
Anthony Kennedy was appointed in 1988 as a moderate pick by President Reagan designed to avoid opposition in Senate confirmation after the rejection of Robert Bork’s nomination. Moderate Republicans Arlen Specter and John Warner opposed Reagan and voted against the confirmation of Bork. Kennedy is the compromise that Moderate Republicans forced on Reagan.
This decision highlights the problem of moderate Republicans. Some conservatives argue that we need to support moderate republicans as they are more electable and they are better than the alternative of liberal democrats. This is the “half a loaf” argument. The problem with this line of thinking is that it gives us appalling Supreme Court Justice choices.
The Boumediene decision was a 5-4 matter. The four justices who voted against the extension of habeas corpus rights to overseas foreigners were Scalia, Thomas, Roberts and Alito. All four dissenters are explicitly conservative in their judicial philosophy and were supported, if at all, only reluctantly by the moderates.
The five justices who voted for this travesty are Stevens, Kennedy, Souter, Breyer & Ginsburg. Breyer and Ginsburg were Clinton nominees and are explicitly liberal. However, Stevens was appointed by Ford, Souter was appointed by George H.W. Bush, and Kennedy was appointed by Reagan. These three are best described as “liberal” “liberal” and “swing vote” - in that order.
Moderate Republican Gerald Ford appointed Stevens. Moderate Republican Warren Rudman was the chief proponent of Souter and assured George H.W. Bush that Souter was in fact a conservative.
Anthony Kennedy was appointed in 1988 as a moderate pick by President Reagan designed to avoid opposition in Senate confirmation after the rejection of Robert Bork’s nomination. Moderate Republicans Arlen Specter and John Warner opposed Reagan and voted against the confirmation of Bork. Kennedy is the compromise that Moderate Republicans forced on Reagan.
The pattern is clear: Moderate Republican politicians want “Moderates” on the Supreme Court who are not significantly different from liberals. Moderate Republican politicians are the opponents of conservatives – not their allies.
- posted by Thomas @ 9:03 AM
