Judges and Terrorists: As attorney general, Alberto Gonzales will have his hands full in a second Bush term
Rabkin, Jeremy
As attorney general, Alberto Gonzales will have his hands full in a second Bush term. T N HIS SECOND TERM IN THE WHITE HOUSE, President Bush will still have to focus on...
...Democratic constituencies will demand that Democrats in the Senate oppose any nominee who is not pledged to maintain unrestricted access to abortion at all times and for all reasons...
...Yet most of the activism that It has been more than a decade since a vacancy opened on the Supreme Court—the longest such interval in American history...
...Could an overly confident or partisan White House get into trouble by pushing candidates who are too conservative...
...Bush's longer-term legacy, however, will turn on his success in reshaping the federal judiciary, especially the U.S...
...This argument carried weight in Bush's first term...
...For all the controversy it has aroused, critics have yet to come up with examples of clear-cut abuses under the Patriot Act...
...Supreme Court...
...And for a quarter century thereafter, no one was rude enough to ask whether it was proper for Thurgood Marshall to hear appeals from his former colleagues—and invariably to endorse their arguments in cases on racial integration, busing, affirmative action, and other matters...
...But an attorney general who is not trusted is likely to be ignored—as the Clinton White House ignored the hapless Janet Reno...
...No doubt, that characteristic was a considerable factor in Bush's decision to nominate Gonzales to head the Justice Department...
...And the odds are, he will...
...At times, a president needs to hear things he doesn't want to hear—even about the law...
...Unlike Reno and a number of more distinguished predecessors, Gonzales brings a good deal of relevant experience to his new post...
...Then let the president hold to the view that the country deserves a court which respects the Constitution...
...In 2002, the Supreme Court reversed its own precedent and ruled that the Constitution for-bids capital punishment for murderers found to be of subnormal intelligence...
...Here is another area where the Justice Department should display more energy...
...Critics certainly have not been intimidated into withholding criticism—or even paranoid misrepresentations—of government policy...
...And it's good to remind ourselves that America is not France...
...There are now not a few potential selections who have come to maturity questioning the shallow pieties of the Warren and Burger Courts...
...The argument against asking Congress to lay February 2005 THE AMERICAN SPECTATOR 13 JUDGES AND TERRORISTS down statutory standards is that doing so may weak-en claims for inherent executive authority in this area...
...But if Bush nominates an appellate judge with a respectable record—someone who has shown both respect for limits and a regard for argument—he has every reason to expect success in a confirmation battle...
...ATUxALLY, conservatives look forward to i launching a new constitutional era when three or four Bush appointees take their places on the Supreme Court...
...Social conservatives shouldn't expect Bush to send a Supreme Court nominee who has spent his whole career in right-to-life advocacy...
...Gonzales would do well to continue the emphasis that John Ashcroft placed on such cases...
...J E R E M Y R A B K I N plunged the Court into controversy over the past 50 years was responding to appeals from the left...
...The odds are that Supreme Court retirements will pile up in Bush's second term...
...I don't think so...
...Justices Sandra Day O'Connor (75 in 2005) and Ruth Bader Ginsburg (72 in 2005) have faced health problems and may choose to retire over the next four years, as well...
...The Court will likely face many future cases, starting with further challenges to American capital punishment standards, in which appellants argue that European practice should guide the interpretation of American law...
...The Justice Department will have much responsibility for presenting the administration's program to Congress, in any case...
...Experience may suggest the need for some modifications in the original legislation...
...Presidents are not always wise to place a political confidant in charge of the Justice Department...
...That, as John Kerry and all other recent Democratic candidates for president have acknowledged, is an official Democratic requirement for judicial office...
...The Court's resistance is all the more understand-able, since no one knows how long these new circumstances may last or how it will be determined that conditions have changed enough to relax or repeal new procedures...
...The White House shouldn't pick jurists whose whole claim to attention is their association with a particular political cause...
...The attorney general can do much to help the president succeed in that responsibility...
...It has been more than a decade since a vacancy opened on the Supreme Court—the longest such interval in American history...
...In at least one instance, a Bush nominee to a federal appeals court turned out to be among the most obdurate opponents of the administration's detention policies—policies that Gonzales had a large role in shaping...
...From Richard Nixon in 1969 to George Bush in 1991, Republican presidents named ten justices in succession...
...A Republican Congress is likely to be receptive to legislative proposals advanced by the Bush administration in the current context—especially if well explained and defended by the Justice Department...
...Constitution or any direct effect in U.S...
...Bush should have no trouble finding nominees with the intellectual resolution to resist the entreaties of trendy law reviews or whining liberals at the New York Times...
...The Court seems open to the notion that the special circumstances of an ongoing terror threat may require special procedures...
...But it's not unreasonable for the Court to resist the notion that all subsequent decisions can be left to open-ended executive discretion...
...The Justice Department can do a lot to help screen candidates and coach them for confirmation battles...
...EANWHILE, the Justice Department has much to contribute before issues get to the courts...
...If a legislative proposal of this kind stirs debate, the administration should also welcome it...
...As White House counsel, at a time when the president was preoccupied with anti-terror measures, Gonzales was BY JEREMY RABKIN 10 THE AMERICAN SPECTATOR February 2005 JEREMY R A B K I N JUDGES AND TERRORISTS closely involved with issues that will require continuing attention from the Justice Department...
...Lawyers who dealt with him in the White House say Gonzales has conservative instincts but is not particularly ideological or intellectual in his outlook—rather like the man who appointed him...
...Gonzales served as Bush's White House counsel in his first term, having worked for Governor Bush in a similar capacity in Texas in the mid-1990s...
...But most of this criticism has been directed at a Supreme Court dominated by Republican appointees...
...Gonzales has personal reasons to stay focused on this challenge...
...For all the controversy it has aroused, critics have yet to come up with examples of clear-cut abuses under the Patriot Act...
...The media tend to applaud initiatives that are not particularly dear to the hearts of conservatives...
...Even writers for this publication have been protesting Court rulings since the Spectator looked out from Bloomington...
...The United States can fight terrorists, while remaining respectful of Muslim religious practice...
...The focus on anti-terror measures deflected attention from the ongoing work of the department's civil rights division, its antitrust division, its criminal division...
...headcoverings to school...
...Conservatives have been railing against the Supreme Court for a long time...
...Alberto Gonzales, a child of Mexican immigrants, might be able to speak quite well on this theme: We still ask new citizens to swear an oath to defend the Constitution of the United States "against all enemies, foreign and domestic...
...The Bush administration might even consider asking Congress to enact legislation clarifying that no international treaty should have any significance for the interpretation of the U.S...
...And liberal advocates promise fierce confirmation battles if the president selects individuals who are "out of the mainstream...
...On the even more contentious issue of what process should be afforded to terror suspects seized within the United States, the Court deferred judgment altogether...
...Gonzales was also closely connected with decisions about nominations to vacancies on federal courts...
...Bush should have better prospects than his predecessors...
...But a fight over nominations ought to be about nominees who are worth fighting for...
...His most prominent characteristic is loyalty to the president...
...Bush's choice for his second-term attorney general, Alberto Gonzales, will likely serve the president quite well in both areas...
...Apart from ailing Chief Justice William Rehnquist, who will celebrate his 81st birthday this year, Justice John Paul Stevens will reach 85...
...T N HIS SECOND TERM IN THE WHITE HOUSE, President Bush will still have to focus on protecting the country from terrorism...
...The United States shouldn't have to bow to policy fads of any other country...
...To justify its change of position, the Court cited the practices of European countries and an amicus brief submitted by the European Union...
...The Court was divided and did not come close to specifying what sort of hearing would be required, under what auspices or what procedure...
...Lyndon Johnson, it's true, was able to get the former general counsel of the NAACP Legal Defense Fund confirmed...
...the battlefields of Afghanistan could not be held at Guantanamo without some opportunity to challenge the basis for their detention...
...It would be far better, I think, for the Bush administration to take the lead in helping Congress craft statutory standards for many of the issues involved...
...A legislative declaration of this kind might not impress the more fanciful or cosmopolitan-minded justices, but it would remove at least some of the pretense that American law hinges on European approval...
...We are, in some way, fighting to preserve our right to be governed by our own laws...
...Unlike previous Republican presidents, Bush will have a comfortable Republican majority in the Senate...
...The big prizes will come with Supreme Court vacancies...
...Gonzales and his aides may hope to reduce some of the hysteria and rancor stirred in this area over the past few years...
...He'll have reason to be especially attentive when Supreme Court nominations are considered...
...More than that, he has every reason to welcome such a battle...
...Some observers warn that nomination battles could tear apart the Republican coalition, as social conservatives seek nominees who will overturn Roe v. Wade...
...Very few justices have remained on the Court beyond that milestone...
...The fact that many of these nominations faced opposition from Democrats—including filibusters, blocking an actual vote in the Senate—did not lessen conservative enthusiasm for the general run of Bush selections...
...The Court has carefully refrained from saying that no one can be held by American authorities except when the government presses formal criminal charges before an ordinary civilian court...
...Even if one goes back to 1953, Republican presidents have nominated more than two-thirds of the justices (14 of 20) confirmed to the Court since then...
...A lot of conservative groups monitoring judicial appointments hope that Gonzales will continue to be actively involved in helping the White House choose its nominees...
...Let a minority of senators insist that they will fight for this extreme position on abortion, which remains a minority view in the country...
...It's not an appealing prospect to leave these questions to be worked out by courts, case by case—and give lasting constitutional authority to all their passing impulses...
...Conservative groups were pleased with the general pattern of Bush nominations to lower courts in the first term...
...14 THE AMERICAN SPECTATOR February 2005...
...European practice was cited again, when the Court overruled its own past precedent last year in overturning a Texas anti-sodomy statute...
...But the rejoinder is that the courts will be less likely to challenge standards to which Congress has given its own authority...
...In its decisions last June, the Supreme Court ruled that even prisoners seized on Could an overly confident or partisan white House get into trouble by pushing candidates who are too conservative...
...The president needs to meet a higher standard...
...Good luck to them both...
...But the department has won respect for inter- Jeremy Rabkin is professor of government at Cornell vening in a number of cases involving religious liber- University and author most recently of The Case for ty, as in the case of the Oklahoma school board that Sovereignty: Why the World Should Welcome sought to prohibit Muslim students from wearing American Independence (AEI Press...
...OR THE MOST PART, the Justice Department is an agency of lawyers, devoted to enforcing existing laws...
...And quite apart from the uncertainties of litigation, the administration would help quell political criticism if it could show that its practices have broad congressional support...
...Jud!Ie i1!ii RO I As attorney general, Alberto Gonzales will have his hands full in a second Bush term...
...He also has the benefit of a whole generation of conservative intellectual revival in legal scholarship...
...History suggests that both the hopes and the fears are somewhat overdrawn...
...True, a Republican administration should probably not expect plaudits for its work in these areas...
...In both of these efforts, the Department of Justice will play a central role...
...The Justice Department ought to protest such arguments more loudly than it has in the past...
...Defending the Constitution is the president's central responsibility...
...The Patriot Act needs to be renewed...
...But it will be good to have a public airing of concerns before the legislation is extended...
Vol. 38 • February 2005 • No. 1
