January 20, 2006
IT'S NOT AS IF ANY OF THIS IS NEW:
Kiss and Make It Up: What happens when there is no law constraining Alito. (Dahlia Lithwick, Jan. 19, 2006, Slate)
In the end, Samuel Alito almost, almost sold me last week with the enormously attractive, ceaselessly repeated mantra that a judge's politics, ideology, preferences, and opinions really are irrelevant. Maybe the only thing that matters really is that a judge "apply the law" and maintain "an open mind." Maybe all that liberal criticism of Alito really was just petty and personal. After all, he showed us that he knows the law. And if he says he has an open mind, who is really in a position to dispute that?It took me a couple of days with a deprogrammer (and some long evenings with the bourbon) to fully unpack the problem with Alito's very neat theory of judging. Maybe it almost works as applied to Roe v. Wade, where there are dozens of precedents and even super-precedents, as Arlen Specter loves to call them, to navigate. But all that nice jurisprudential wallpaper simply falls away where it really matters: the constitutional limits of the war on terror. When it comes to the reach of the president's authority to pursue this war with a warrantless wiretap in one hand and a cattle prod in the other, there is almost no statutory authority or court precedent. Judges, specifically the justices of the Supreme Court, will in the end be making up the law more or less as they go.
Huh? Why isn't the absence of prior attempts to hamstring the Executive in wartime itself an important precedent? If prisoners of war were entitled to trials why haven't they ever gotten them in the past? If you can't spy on the enemy if he's contacting people in American then why has it been routine in the past? The fact that the Court would have to invent limits on the Executive war-making power out of whole cloth is exactly why it would be anti-constitutional and ahistorical to do so. Posted by Orrin Judd at January 20, 2006 1:17 PM
Judges, specifically the justices of the Supreme Court, will in the end be making up the law more or less as they go.
And, here again, we see what the Left thinks the Court's job is. Maybe it's cheap bourbon? She should try Knob Creek.
Posted by: John Resnick at January 20, 2006 1:31 PMI wish people like this Lithwick would show similar concern for constraining the Judicial Branch in peacetime with they overreach. (similar? any)
Posted by: Raoul Ortega at January 20, 2006 1:45 PMThat's no cattle prod Dahlia.
Posted by: Genecis at January 20, 2006 2:18 PMThis just about sums up Dahlia Lithwick:
Congratulations are in order for Slate's Dahlia Lithwick, who previously crossed the ignominious line from "prating fool" to "fen-sucked dewbelly," and now with this column on marriage has officially earned the designation of "wombat of idiocy."
-- Ben Domenech, 12/01/03
Posted by: Matt Murphy at January 20, 2006 2:39 PMAnd here I'd just thanked everybody for not namecalling....
Posted by: oj at January 20, 2006 2:49 PMSpeaking of judges making up the law, I betcha Michael Steele just added a certain MD judge to his list of Valentine's Day card recipients...
Posted by: b at January 20, 2006 3:17 PMYeah, but the names we call people are a lot classier. "Fen-sucked dewbelly" -- whatever that means, you don't hear it much over at the Daily Kos.
Posted by: joe shropshire at January 20, 2006 3:32 PMI'm still trying to figure out what a super precedent is.
Posted by: sharon at January 20, 2006 4:10 PMSharon: It's somewhere between a precedent and a super-duper precedent.
Posted by: jd watson![[TypeKey Profile Page]](http://brothersjuddblog.com/nav-commenters.gif)
at January 20, 2006 4:14 PM
Also, is it really name calling when it's just a straight forward description with no insult intended. I don't know what Dahlia looks like, but I've seen wombats, so I can kinda get the picture. Ben certainly can turn a phrase.
Judges, specifically the justices of the Supreme Court, will in the end be making up the law more or less as they go.If only we had some document with basic guidelines for Law in this nation. Something relatively short but covering the powers and responsibilities of the federal government. Something beyond just statutory or judicial precedent. In essence, a basic guide to governing that would constitute the highest law in the nation. Just too bad the Founders didn't think to write one. Posted by: Annoying Old Guy at January 20, 2006 7:31 PM
I don't really think we should be calling people insulting names. Sometime we do it in a good natured, factually based way, such as "Hanoi John," or the "the Chappaquidick Kid," but not just schoolyeard epithets.
Turning to the substance of the Lithwick article, I am afraid the the devil must be given his or her due. Her discussion of the war powers is actually quite correct.
There is no "bright line," no clear, rule on executive war powers. The few cases which have arisen have been decided on a case-by-case basis, and are almost all limited to narrow, specific, factual, legal and procedural scenarios.
This means that Lithwick got it almost exactly right. There are no "super-duper" or even mere "super" precedents in this area, and Alito will among the few and, we hope the proud, with the power to decide whether the Constitution is a suicide pact.
I had said, "almost." There seems to be one lodestar to the war powers cases. Namely, that the power is upheld, and the law steps aside, while the threat is immediate and grave. Milligan was a peace-time case, Quirin early in a tough, possible losable war. Are we in such a situation now?
The problem for the law of war powers with respect to the War on Terror comes out in the article. We are not going to end it on a date certain singing "Green Grow the Lilacs" on our Einzugmarsch into Mecca. It is potentially an endless war in the style of Orwell's 1984. The author whom everybody wants to call names got even this point right. She might be deserving of scorn, she might even be a folk-enemy and culture-traitor, but she nailed the war powers issues rather well.
And other than that, what do you hear over at the daily Kos Joe?
Posted by: Genecis at January 20, 2006 8:33 PMOJ:
As you probably know, Mr. Domenech was quite a master of civil name-calling back when he ran a blog. On occasion, the trick is to nod your approval when someone else admits what a pretentious ass they are.
Posted by: Matt Murphy at January 20, 2006 11:04 PM