Posted on 06/12/2008 2:23:58 PM PDT by 2ndDivisionVet
In a campaign dominated by the economy and the Iraq War, the Supreme Court's 5-4 ruling Thursday on detainees at Guantanamo marks a forceful reminder that John McCain promises one course and Barack Obama pledges another in picking future justices.
In the current controversy, McCain quickly expressed his disapproval of the opinion, while Obama issued a statement of support. It fell to outsiders to point out the broader implications in the race for the White House.
"With the replacement of a single justice from the majority ... today's four dissenters could become tomorrow's majority," said Nan Aron of the Alliance For Justice. The group supported the court's decision, which said detainees in the war on terror held at Guantanamo have the constitutional right to challenge their incarceration in the federal courts.
Security must exist "in fidelity to freedom's first principles," wrote Justice Anthony Kennedy for a majority seeking to balance the nation's security needs with individual rights enshrined in the Constitution. He went on to criticize the Bush administration and Congress for yielding too much to the former at the expense of the latter.
Of the five justices who created a majority in the case of the Guantanamo detainees, Justice John Paul Stevens is 88, Ruth Bader Ginsburg is 75, and David Souter and Stephen Breyer are each 69. Kennedy is 71.
The generally younger dissenters were Chief Justice John Roberts, 53, and Justices Samuel Alito, 55, Clarence Thomas, 59 and Antonin Scalia, 72.
Since Supreme Court seats are lifetime appointments, vacancies do not always occur in the four years allotted to a presidential term. That makes any discussion about the impact of a campaign on the high court inherently speculative.
But hardly pointless.
In the last 80 years, Jimmy Carter, a one-term president, was the only chief executive who did not have an opportunity to make a Supreme Court appointment. George W. Bush has filled two seats, and in the process strengthened a conservative shift that began four decades ago with Richard Nixon, ran through the presidencies of Ronald Reagan and George H.W. Bush and managed to outlive Bill Clinton's two terms in office.
Based purely on the ages of the current justices, the nation's 44th president can reasonably expect to fill at least one vacancy.
By their votes in the Senate and their comments as candidates, Obama and McCain signal supporters of their intentions without saying they would apply the type of litmus test that might infringe on the independence of the judiciary.
Often, but not always, these comments are addressed largely to supporters and opponents of abortion rights.
"I would not appoint somebody who doesn't believe in the right to privacy," the underpinning to abortion rights, Obama said in a campaign debate in Las Vegas in November 2007. Pointing out that he once taught constitutional law, he added, "Part of the role of the courts is that it is going to protect people who may be vulnerable in the political process, the outsider, the minority, those who are vulnerable, those who don't have a lot of clout."
McCain offered a different view in a Republican debate in May 2007.
"One of our greatest problems in America today is justices that legislate from the bench, activist judges," he said.
He elaborated seven months later in another debate. "The judges I would appoint are along the lines of Justices Roberts and Alito, who have a proven record of strict interpretation of the Constitution of the United States," a commitment he has repeated often.
McCain voted to confirm both Roberts and Alito, while Obama opposed both.
McCain sought political advantage in that this spring in Winston-Salem, N.C., saying his rival "went right along with the partisan crowd" with his opposition, despite claims that he works across party lines.
Both men also describe their intentions by reacting to other controversial rulings.
When the court handed down an opinion that upheld a ban on so-called "partial birth" abortions, Obama said he worried that "conservative Supreme Court justices will look for other opportunities to erode Roe v. Wade," the landmark ruling that granted abortion rights to women.
Last year, Obama complained about a different 5-4 decision, one that ruled against Lilly Ledbetter, a longtime manager for Goodyear Tire and Rubber Co., who claimed job discrimination because of her gender.
McCain, seeing the case through a different lens, defended the decision and called it a defeat for trial lawyers who sought to sue companies.
Whatever the particulars of the case _ and both Obama and McCain have called for Guantanamo to be closed _ it's a debate likely to reverberate through the campaign.
And then resume in earnest when one of the two rivals wins the White House and wields the power of Supreme Court appointment.
"Both a Scalia and a Ginsburg will arrive at the same place most of the time," Obama said during the Roberts confirmation hearings. "What matters at the Supreme Court is those 5 percent of cases that are truly difficult. ... That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works and the depth and breadth of one's empathy."
McCain answered derisively in a recent speech recalling Obama's reference to a judge's "deepest values" and "empathy."
"These vague words attempt to justify judicial activism," he said. "Come to think, they sound like an activist judge wrote them."
“McCain quickly expressed his disapproval of the opinion, “
Why?
Senators John McCain, John Warner, and Lindsay Graham – three of the primary authors of this legislation – have argued that this definition “simply establishes the jurisdiction of military commissions” and does not, in any way, authorize the arrest and indefinite detention of those who fall within this broad category.2
http://www.hrw.org/backgrounder/usa/qna1006/3.htm
John Warner, John McCain, Lindsay Graham, “Looking Past the Tortured Distortions”, Wall Street Journal¸ October 2, 2006.
You Have the Right to Remain Silent…
McCain, Miranda, and Common Article 3.
September 20, 2006 National Review
“To oversimplify for explanation’s sake, the McCain amendment extends the Fifth Amendment privilege to alien enemy combatants held overseas. It did this for the express purpose of clarifying the meaning of the terms “cruel, inhuman, and degrading treatment” (CID) in the United Nations Convention Against Torture. (That itself is ironic because Senator McCain, former Secretary of State Colin Powell, and others who supported the McCain Amendment are now faulting the Bush administration for trying to clarify impossibly vague terms in the Geneva Conventions’ Common Article 3.......
the McCain Amendment literally grants Fifth Amendment protection only insofar as government conduct could be considered “cruel, unusual and inhumane.” (As the McCain Amendment states: “the term ‘cruel, inhuman, or degrading treatment or punishment’ means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth … Amendment” )....
......Here, it is worth remembering (how could we forget?) that the whole purpose of the McCain amendment was to regulate coercive interrogation. The amendment was the direct product of an overwrought debate over something that was already illegal — namely, torture. Its purpose was to crack down on sub-torture conduct (i.e., cruel, inhuman, or degrading treatment) as if it were torture so that, henceforth, the United States could not even be credibly accused of torture. ....
......This Supreme Court has already gone out of its way to find that Common Article 3 of the Geneva Conventions, which literally relates only to civil wars, somehow governs our patently international conflict with al Qaeda. To come to this conclusion, it had to ignore clear provisions that say Geneva rights, including Common Article 3, are supposed to be enforced diplomatically — i.e., not by courts. Moreover, the same Court has found that questioning which merely fails to alert a suspect that he has a right to counsel is constructively coercive and violates the Fifth Amendment. “
http://article.nationalreview.com/?q=NGI4MTZjZWE2ODdiNDkzMzA5NjkwZDA3OWU0NGQ1N
Good show eh!
“The USSC pretty much has voted with a 5 to 4 majority to eliminate the taking of prisoners in war.
Good show eh!”
I guess you’re right, it is interesting. I’m seldom bored when steam comes out my ears.
“John McCain promises one course and Barack Obama pledges another in picking future justices.”
He who controls the Senate, controls who sits on the bench. These candidates can promise/lie/BS all they want, but with the Senate firmly in Democrat hands, the only one that will follow through on his promises vis a vis judges is NOT named John McCain.
“The USSC pretty much has voted with a 5 to 4 majority to eliminate the taking of prisoners in war”
Sounds like a plan, kill ‘em all.
Why is indeed a good question. My guess is that John voted to confirm each of the majority SCOTUS justices on this decision.
Why should he get upset about the ruling itself. He has said the prisoners at Gitmo should get Geneva Convention status. He has advocated for them being treated like POWs.
I don’t think John actually understands what his advocacy means. And now that at least part of what it means has been realized, John is aghast. Well John, so was I before the fact. Glad to have you on board buster, as if I believed a word you were saying.
McCain will have to deal with a filibuster proof socialist senate.
(55-58 dems, 4-5 RINOs)
In the name of cooperation, we will NOT get constitutionalists.
I don’t know why people have a hard time getting their head around the notion that McCain could be for closing Gitmo and still be against this ruling. It shows he understands the proper role of the judiciary.
So be it. The President shoulplay a trump card and ordat no military person should ever take a prisoner of war.....alive! Then let them rule that the military can't kill anyone. Stay tuned in 20 years for that ruling!
I will vote for John McCain, because I trust him to pick Justices who will be less activist than Ruth Bader Ginsburg or John Paul Stevens, the two Justices who will be most likely to retire next. They have held off retiring, because they didn’t want George W. Bush to choose their successors.
That's only if we allow the Dems to get to that point. Regardless of the complaints folks have about the Republican nominee, they could work hard to get more conservatives in the House and Senate.
This post may be more in the vein of a fantasy, but if John sends up conservatives who can’t make their way through the Senate - after two or three liberal justices have left the court, by any means necessary...the court could have only 6 or 7 members, and be solidly conservative. There is NO law that says the Supreme Court can function or issue rulings with less than 9 justices present and voting.
I was really annoyed that so many freepers were running around saying McCain approved of the opinion. They couldn't understand the difference between wanting politically to close gitmo, and opposing an overreaching supreme court.
Trust and John McCain don’t go together. He’s a betrayer of the first order. Three of the five justices ruling on this abomination today were named by Republicans. McCain would nominate more liberals.
You were one of them. McCain spoke AGAINST the ruling. You need to figure out the difference between wanting to do something politically, and watching the courts usurp their authority.
So is this going to be the new “no point in voting for McCain” argument? That since McCain will have to fight for a conservative (remember Scalia was almost unanimously approved by a democratic senate), we’d be better off with Obama?
It won’t fly with THIS voter.
Sshh. Don’t give away the strategy.
Sadly, the republicans will still have enough votes to do that in the senate by filibustering any liberal nominee.
But they never supported using the filibuster for that purpose.
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