Strengthening Constitutional Self-Government

No Left Turns

On Rhenquist’s replacement

The Washington Post assumes that on Rhenquist’s retirement no one currently on the Court would be elevated to Chief and thinks that the three top candidates are Gonzales, Luttig, and Roberts, although other possibilities are mentioned.

Discussions - 40 Comments

Although briefly mentioned in the article as a Gonzales alternative, Fifth Circuit Judge Emilio Garza seems to me the most likely name to be put forth, or so I have been telling folks for several months.

It should be Scalia...he has been faithful and thoughtful. I’m afraid that if GWB goes for "ethnic firsts" rather than doing the right thing, I will be very disappointed. Maybe even disenchanted....

It should not be Scalia. Being Chief involves more than being sound--it requires the ability to build coalitions and move the Court. Rehnquist has shown himself rather masterful in this regard. Scalia has played the role of bomb thrower, which has its place, but creates bad blood. He is not likely to work very well with Kennedy and O’Connor given the less than flattering things that he has said about them over the years, and while the latter will probably not remain on the Court for long, working with the swing votes is a must. This is not to deride Scalia for dressing down his colleagues when they richly deserve it; rather, it is simply a recognition that by doing so, he has impaired his ability to herd the scorned cats.

Furthermore, Dain chooses an odd time to praise Scalia. After his wretched concurrence in the medical marijuana case, I would have thought that you could have chosen a more solid justice, such as Thomas.

No, Scalia should not be Chief. It makes far more sense to follow the common historical precedent and to appoint the chief from outside the current membership of the Court.

Yes, more moderation, more compromise, more of NOT getting what the country needs. Instead of taking a cautious approach (which seems to be a disease of the Right), let’s be bold and select Scalia. It’s been my own experience that leadership roles often force previously ’extreme’ members to be more circumspect. I think this will be true of Scalia...he understands his responsibilities quite well, and he will make an excellent Chief Justice (and I seldom judge a Justice by a single decision...that’s foolhardy). Besides, maybe his staunch leadership will encourage some of these losers to retire a bit earlier :)

O.K., so you would not judge a justice by a single decision. How about his dubiously reasoned opinion in Hamdi? Or his disavowal of the import of the Declaration in Grutter? And his recent opinion in the medical marijuana is no small blunder, but a glaring jurisprudential error. Again, if you are going based on the merit of current members, why Scalia rather than Thomas, who has shown himself to be a superior jurist.

You also set up a straw man, as if my recommonedation would an abrogation of principle through compromise. I would point first to the current Chief. You will be hard pressed to find many instances of cowardice by Rehnquist (and in those rare instances where he joined a particularly dubious decision, you will note that he wrote the decision. The Chief has the ability to assign decisions so long as he is in the majority, so it is widely believed that Rehnquist at times has voted out of necessity with the majority so that he would have more control over the opinions--that is to keep the decisions from being worse than they are, by keeping Stevens from controling the assignment.)

Scalia just can’t decide to wake up tomorrow and make nice now with Kennedy, and Kennedy is not likely to just leave. Why not get someone who is an equally strong (or stronger) jurist, but one who would be capable of leading because he has not burned bridges? This would not betray principle, but would show a modicum of prudence.

As for making Scalia more circumspect, do we really want him more circumspect? He is at his best when he is bombastic. Why take this away from him? Let someone else play the role of conciliator, and let him show the errant their mistakes with verve.

We can and should be bold, but we should also show some prudence. We can have someone in the Chief spot who has not already offended other members of the Court, AND we can have someone in the Chief spot who is solidly conservative. Why should we settle for only one of those characteristics?

I think Scalia’ constructionist viewpoint comes out consistently in Hamdi. The Declaration of Independence ISN’T a governing document...what’s your beef? As for medical marijuana, I can’t read his mind. Perhaps he was convinced that this State-created "medical" exception was liable to be abused, and so opted for Federal dominance in the law. I’m not sure, but it’s not enough for me to distrust his jurisprudence...it’s been really good.

Why not Thomas? Well, I think Scalia’s smarter, for one, and Scalia has seniority (which matters in my book). As for not being able to kiss and make up, I think you overestimate the enmity involved.

It’s true that I value Scalia’s "loose cannon" antics, but not enough to choose them over his leadership of the court.

First, Scalia has overtly said that he is not a (strict) "constructionist," but is a textualist. Second, his opinion in Hamdi is not consistent with either strict constructionism or textualism insofar as it 1) is not consistent with the text or original meaning of the term due process; and 2) it rejects the binding precedent of Ex Parte Quirin for little better reason than he didn’t like the outcome. But I’m guessing that an outcome based shift does not disappoint you, since you suggest that his lack of principle in the medical marijuana case would be justified if he saw potential abuse. Normally I have to look to Justice Brennan to see such a glorious defense of outcome- based jurisprudence! The commerce clause doesn’t give Congress the authority to regulate when Dain (or Scalia) deigns the outcomes preferable--or at least it didn’t until Scalia’s concurrence.

Your statement about Scalia being smarter is a bit disconcerting. Have you read Thomas’s decisions in Lopez, and the Term Limits v. Thornton case, for example? Or Grutter? These are virtual treatises on the subjects--some of the finest legal scholarship to come from the Court in years. I have seen others suggest that Thomas is an inferior mind to Scalia (an Esquire cover comes to mind), but those people generally use thinly veiled arguments to hide their pointed prejudices . . . .

As for overestimating the enmity, suffice it to say that I have it on good and direct authority that the wounds run deep. You offer mere speculation that Scalia would instantly be able to shift gears, and that everything would fall into place. Keep on tapping your heels together.

Finally, you have failed to say why we should waste political capital on appointing anyone from within, when we can score an equal or greater victory by appointing from without. Again, why even bother appointing someone where there is a risk that they are not going to work as well with others on the court because of old wounds, when you can get someone just as smart (or smarter) who will work better with the rest of the Court?

So, who are you? Who is this authority you appeal to? Don’t expect your "expertise" to be respected if you resort to pseudonyms and unnamed "direct authorities." Secondly, I’m sorry you disagree with Scalia on a few cases...interpretation does breed disagreement, and people who think themselves utterly consistent are often shocked to find that others look at it from a different angle. I have read Grutter and I find no fault with Scalia’s reasoning, nor do I find Thomas’ superior. Scalia writes much more and on a greater diversity of issues than does Thomas. As for Thomas himself, I have no complaints, but he isn’t the scholar that Scalia is, and this is reflected across the spectrum of opinions, in my opinion (no unnamed sources of authority in my post, no sir). Your cherry-picking sounds like something an attorney would do...hmm.

Bush should not pick either one of them. There are only so many times he can get the right people through SEnate hearings before the media (and Arlen Specter) start talking about "compromise candidates" and the "danger" of Bush "always getting what he wants," or something lame like that. Conservatives are much better off taking one shot at each open seat, rather than wasting political capital getting Scalia bumped to Chief, only to follow that up with an O’Connor-esqu replacement for Scalia’s old spot.

As for the general idea of Scalia being Chief, well, he is my favorite justice by far, but I can’t disgaree with Comment 5: He is at his best when he is bombastic. Why take this away from him? Let someone else play the role of conciliator, and let him show the errant their mistakes with verve.

And let’s face it, his concurrence in the medical marijuana case was far off the wall, and a great gift to big-government fans everywhere. It will be quoted from now until the end of time by liberals trying to defend all manner of intrusions.

OV, going for a new Supreme appointment and the Chief Justice post at the same time...now that’s an argument I could buy. Nonetheless, I seldom let practically get in the way of loyalty and fairplay...a failing of mine, I admit. I think Scalia deserves to be the new Chief Justice.

Unfortunately, I don’t think that whether either Scalia or Thomas deserves it will be the deciding factor.

No unnamed sources from you, and no foundation either. You do not offer a shred of support for your statement that Hamdi is consistent with a "constructionist" view. Perhaps that is just because you erred about Scalia being a "constructionist," or perhaps it is because you just liked the outcome he reached--much like your Brennan-esque defense of Scalia’s medical marijuana opinion.

As for Scalia being a better scholar across the spectrum of opinions, tell me something, which justice is most likely to be assigned the most complicated (and difficult) code-based cases? The answer is Thomas. Sure, Scalia writes nice, flashy opinions in the culture war cases (which aren’t that difficult), but Thomas does the heavy lifting. I suppose that Thomas’s handling of these varied and difficult cases must arise from his lesser legal prowess . . ..

You accuse me of cherry picking, and yet you hide behind generalized and unsupported statements (across the spectrum . . .). Your lack of evidence make it clear that you should not be mistaken for a lawyer. Oh wait, but your reliance on policy preferences to justify decisions does make you sound like an activist judge. . ..

You should be quite careful: your reliance on loyalty is among the key reasons that many believe Gonzales to be a potential nominee: Bush’s loyalty to Gonzales.

Oh, I guess I pushed a button or two, counselor. Sorry about that. Then again, it wasn’t me who referenced "good and direct" authority on the enmity in the court...and I notice you haven’t answered my original question. Ergo, your statement must be hogwash.

Your opinion of Scalia vs. Thomas is also unsupported opinon. Big deal...commenting in a blog doesn’t exactly allow us to construct briefs, now does it. I think the gravitas of Scalia can easily be demonstrated, while Thomas’ record is pretty sparse. I generally like Thomas’ decisions, don’t get me wrong, but I just don’t think he should be the next Chief Justice. So sue me! Oh, that’s right, you might....

But I bet I understand and use evidence more often than you do. Jurisprudence isn’t science, and most of the time it is just congealed prejudice...they call that governing, I’m afraid.

You have pushed a button. You have stated that simply legislating policy preferences from the bench is O.K. (a la the marijuana case) and now you have drunk deep from the fount of legal realism, suggesting that jurisprudence is nothing more than congealed prejudice. Well, why should we prefer your prejudices to Brennan’s? You are an activist, plain and simple, seeking outcomes rather than application of the law.

You state that I have not answered your question, but fail to even state what question that was. And I didn’t ask you for a brief. I gave you reasons that Hamdi was incorrect; you said it was consistent with a jurisprudence that Scalia does not even adhere to without saying why. YOU HAVE NEVER ANSWERED THE WHETHER 1) YOU HAVE FAILED TO RESPOND TO HAMDI BECAUSE YOU REALIZE YOU ERRED IN CALLING SCALIA A "CONSTRUCTIONIST," WHICH HE IS NOT; OR 2) BECAUSE YOU DON’T UNDERSTAND HAMDI, AND WERE JUST SPOUTING OFF UNSUPPORTED "HOGWASH" WHICH MIRRORS YOUR POLICY PRERERENCES. My guess is that the real answer is a little from column A, and a little from column B, given your subsequent embrace of activism.

By the way, I am not a lawyer, I just actually believe that judges should apply the law and not their policy preferences. That is what conservatives stand for, and as you have shown ably on this string, it is not what you stand for.

Correction to my previous post: It should read that activist Dain "never answered whether," not "the whether . . . ." One last request: in your response, try actually responding, and do try to use some of that evidence that you claim to muster more than me. So far, I have given you specific reasons that Scalia’s separate opinion in Hamdi is poorly reasoned. You have said you like it. That is not evidence. Do try to find some.

Well, quite the smartass. Very well, you act like a man who hasn’t read Hamdi. The original opinion (as well as Thomas’ dissent) essential ignore the critical point...Hamdi was an American citizen at the time of his capture (just like John Walker Lindh, who was tried in civilian court as was fitting and proper). Scalia’s logic in finding fault with his colleagues is scathing and impeccable -- the "laws of war" which had been applied in the past only apply to citizens when civil courts are not open (i.e., available). In essence, Ex Parte Quirin was poorly reasoned and based on an extreme case (5 German insurgents on American soil, only one of whom was a citizen). In contrast, Thomas’ alternative dissent poorly reasoned and confused.

We learn two things from Scalia’s dissent. First, there is at least one Supreme Court Justice who cares about due process and habeas corpus (even when he has to go against his conservative brethren to champion it), and two, this country needs to get serious about granting citizenship because citizenship holds consequences for legal proceedings (thank God). There is nothing egregious in Scalia’s dissent...indeed, it represents the best American thinking on civil rights.

Why is it that you have the propensity on this blog of questioning whether someone has read something when you have a facile understanding of it. Curious. You think that Thomas ignored the fact that Hamdi was a citizen? Are you trying to demonstrate your ignorance, or does it simply flow forth without effort?

After tacitly conceding that Quirin is controlling (Hamdi is a citizen, and so was one (the requisite number) of the co-defendants in Quirin; the rule in Quirin applied to citizens who were enemy combatants), you misstate the law. First, your statement that the laws of war only apply when courts aren’t open is wrong under Ex Parte Milligan, which expressly noted that the defendant was not alleged to be an enemy combatant, and therefore the court could even consider the case. Quirin simply recognized the distinction that enemy combatant-status makes to due process--a distinction finds support in the earliest cases of the Court.

Your argument that Quirin was an extreme case is a bit thin as well. I’ll give you that the facts of saboteurs entering the U.S. makes for lively reading, but then so does the fact that Hamdi was captured in a war zone carrying an AK-47 in the company of the Taliban--who had cooperated in an attack on U.S. soil--something that even the Germans didn’t accomplish.

But my big problem again is that other than your error about the legal history (which seems to be based on a sophmoric reading of Ex Parte Milligan), your post is conclusory, and devoid or reasoning. Quirin is "poorly reasoned." O.K., why? Is it based on the historical understanding of Due Process. Oh wait . . . that can’t be the answer, because it is consistent with the historical understanding of Due Process. It must not meet the infamous "Dain public policy" test. Thomas’s decision is "poorly reasoned and confused." O.K., how bout an example of the poor reasoning and confusion. I know that this will be a little difficult for you, because you were so confused yourself that you thought that Scalia was a strict constructionist, but we’ll let you use the big chief pad and the blue pencils if it helps.

Again, despite your flourish at the end, you show that you care only about results. Scalia reaches a result that you like. Insodoing, you are no different than the hoards of liberal activists who see the courts as tools to push their liberal agenda.

Milligan set a fairly absolute standard -- American citizens are not to be tried by military tribunals if applicable civil courts are open for business. Scalia found Quirin’s attempt to finesse this away (by saying that the defendant was not an enemy combantant, and therefore Milligan did not apply) as weak and immaterial. I agree. Quirin is bad jurisprudence, and it does not overturn the older precedent of sending citizens accused of treason (etc.) to civilian courts, whether in peacetime or during war. In short, it was poorly reasoned -- maybe because it was created
post factum...the court gave almost immediate leave for the government to execute the Germans in question, and issued the decision months later. Yea...a stellar decision.

And, you know, it would be nice if you got the facts straight. Hamdi never admitted to being a combatant...and there was no discovery process to prove it one way or another because he was not given due process under the law. Scalia discusses this as well, but you either haven’t read it or chose to ignore it. So, even by your own logic, Scalia was RIGHT to dissent -- the prior logic of Milligan, as stated or as interpreted by Quirin, cannot be dispensed with in this case.

Indeed, you are the one who hasn’t said much of anything. I understand that you don’t like Scalia’s dissent in this case, but you haven’t stated clearly why you feel that way. Do you really think that the government should have the right to lock away an American citizen without benefit of counsel or habeas corpus? Essentially, you are saying it’s perfectly OK for the military to decide the guilt of an American citizen on the battlefield. Now who’s being the radical activist?

This thread will be sunsetted very soon. We can continue to argue in the twilight, or you could just stop pretending to know the law and admit you are wrong.

What the hell is Milligan?! Are you two really still fighting over which one of the two best judges in the country ought to be promoted? That hardly seems worth the discord.

First, Milligan carefully stated that the accused was not a prisoner of war/enemy combatant, so its rule is distinguishable, and was distinguished by both Quirin and Moyer.

Second, I never said that Hamdi admitted to being an enemy combatant. That is the question: which branch makes that determination. You would seem to agree with Scalia that Due Process must require a judicial proceeding, rather than an Executive determination (even in a zones of conflict, where the President’s authority is at its highest constitutional level and the Court’s authority is near nil). Other than blanket statements that Quirin (and Moyer, and Milligan, and the common law) are bad, what support do you have for this?

I was clear from the beginning why I dislike Scalia’s opinion: he does what you do (albeit more intelligently): he basically says he doesn’t like Quirin, so he’s going to take his ball and go home. That’s fine, but then what about Moyer? What about Milligan’s pow/enemy combatant distinction? What about the lack of a historical requirement that due process be confined to the courts? His opinion is more pleasant to me as a policy outcome, but unlike you, I actually like to apply the law, rather than my policy preferences. But, as you made eminently clear in your post about medical marijuana, your fine with unprincipled decisions, just so long as they reach your desired results.

Stop evading what you know to be true. Hamdi denied being a combatant...our own troops didn’t even catch him -- he was captured by our Afghani allied ’irregulars’, so his innocence or guilt was determined second-hand. That’s strike one against denial of habeas corpus. Strike two, as Scalia points out, is that Milligan never makes that distinction between combatants and non-combatants. The ban on military trials for American citizens is absolute so long as civil courts are operational. Strike three is that jurisprudence other than Quirin points to a civilian trial for American citizens accused of treason or aiding and abetting the enemy. This was done for John Walker Lindh, and it was done properly. Today Lindh is serving a sentence, while Hamdi was allowed to go to Saudi Arabia. In short, justice was done using proper procedures, but was frustrated using the contorted logic of Quirin.

And you can accuse me of being a relativist/activist all you want...doesn’t make it so. Indeed, you are the one that would serve expediency by stripping American citizens of due process and placing their fate in the hands of the Federal government. That’s very sad.

I would also say that your insistence of "following the law" is never going to happen. Far too much water under the bridge, and while the rhetoric sounds good (and may in fact be a good tactical tool for reshaping the judiciary), in reality human beings are going to interpret law. Words are mathematics, and so law isn’t an exact science. The idea is to make sure the interpreter is on our side and is the best man/woman for the job. In my book, that would be Scalia, and your empty complaining doesn’t change that either.

Of course, I meant to say that words are not mathematics.

First: read my previous post before your blather. It doesn’t matter whether Hamdi denied being an enemy combatant. The question again is which branch has the authority to hear those claims. I didn’t evade that question; you failed to read, or more likely, to comprehend. While he was captured by our allies rather than by our own military, the administration made the determination that he was an enemy combatant. You treat that which is ordinary in war as something uncommon. By even tacitly suggesting that you need something like a chain of custody beginning with U.S. capture in order to establish that he is an enemy combatant, you show the problems with attaching legal standards to war zones. (You should like the last argument--it goes to policy rather than law.)

Second, try reading the last paragraph of Milligan before embarassing yourself. It quite clearly recognizes a distinction for prisoners of war. You should also sit and think real hard about the fact that Milligan involved a criminal prosecution, and Hamdi did not. Thus, even if Milligan were as broad as you say, it doe not necessarily apply in the instant case. The executive has the authority to detain combatants (even citizens) during times of conflict, and not to charge them with anything. The purpose is not punishment, but rather to prevent them from rejoining the war. This is the conditions of Hamdi’s detainment. I know that this will offend your sense of public poliicy, but try to stick to law for a second. You must concede that "due process" considerations on the battlefield are left to the executive. For example, having captured Hamdi who is alleged to have been violating certain key provisions of the laws of war (e.g., failure to wear a uniform while taking up arms), the U.S. could have executed him on the battlefield without trial. Are you suggesting that we should just move U.S. courts to the battlefield, so that in the heat of the moment we can interrogate each enemy as to their country of origin? Why does detaining them change this calculus? Isn’t the determination still being made by the Executive? Indeed, it is constitutionally entrusted to the Executive. And, for your public policy perspective, why would this not cause those on the battlefield to simply take the more severe step of executing those who they are entitled to execute, rather than taking the step of capturing them?

Third, prosecutorial discretion (the Lindh case) isn’t a precedent. This suggests that you really don’t know anything about the difference between the branches.

My calling you an activist doesn’t make it so. You still have not stepped back from your statement that the mj case was fine because of outcome, not law. That’s what makes you an activist. You try to redefine activism, suggesting that my position that the constitution and clearly established Supreme Court precedent does not give the courts the authority to question executive determinations that an individual may be held without charges as an enemy combatant/pow. WHAT? Do you even know what the term activism means? I already suggested that as a matter of policy, a broader due process right would be preferrable. But that doesn’t make it so, unless you employ activism, and apply your personal preferences from the bench.

Your last paragraph is just one big cop out. Jurisprudence isn’t that hard, and those who make arguments such as yours are simply trying to justify the imposition of their own prejudices, of which your posts suggest you have many. Your arguments could have just as easily been made by a silly legal deconstructionist (since there is sometimes ambiguity in words, then they must have no meaning whatsoever, so we can do whatever we want with them . . . .) Your argument about too much water under the bridge is just plain wrong. This was the first case to take up the issue since Quirin, and no case went the other way. Wheres the water? The answer seems to be that you endorse notions of substantive due process, the brain child of Dred Scott and the father of Roe, because it fits your purposes. Fine, but you better realize that the liberals then are just as justified in using it for their purposes.

In the end, you view law as nothing but politics. This is odd, because your hero Scalia disagrees with you. He doesn’t like trial lawyers and large punitive damage claims, but he was able to actually read the constitution and find that there is no due process limitation to punitives in BMW v. Gore. I suppose that by your lights he must have been wrong in that case. He should have just been "on our side" and let the Constitution be damned. That certainly is your argument with regard to Hamdi and medical marijuana.

I always find it amusing when some pompous ass overextends himself...or perhaps you just need to visit your optometrist (your prescription must be out of date!). For the record, it really would be nice if you would stop pretending to know the law...whatever far right websites you are relying on have failed you in this instance.

ANYONE who actually reads Ex Parte Milligan quickly realizes that the last few paragraphs are a dismissal of government claims that the law of war applies in that situation. In essence, the Justices are saying this: "Your logic does not apply, but even if it did, Milligan was a non-combatant and therefore in no sense subject to the laws of war." You have mistaken an afterthought for the gist of the decision (a mistake Scalia DID NOT make).

And what is that central ruling. Here it is...a direct quote:


The discipline necessary to the efficiency of the army and navy, required other and swifter modes of trial than are furnished by the common law courts; and, in pursuance of the power conferred by the Constitution, Congress has declared the kinds of trial, and the manner in which they shall be conducted, for offences committed while the party is in the military or naval service. Every one connected with these branches of the public service is amenable to the jurisdiction which Congress has created for their government, and, while thus serving, surrenders his right to be tried by the civil courts. All other persons, citizens of states where the courts are open, if charged with crime, are guaranteed the inestimable privilege of trial by jury. This privilege is a vital principle, underlying the whole administration of criminal justice; it is not held by sufferance, and cannot be frittered away on any plea of state or political necessity. When peace prevails, and the authority of the government is undisputed, [71 U.S. 2, 124] there is no difficulty of preserving the safeguards of liberty; for the ordinary modes of trial are never neglected, and no one wishes it otherwise; but if society is disturbed by civil commotion-if the passions of men are aroused and the restraints of law weakened, if not disregarded- these safeguards need, and should receive, the watchful care of those entrusted with the guardianship of the Constitution and laws. In no other way can we transmit to posterity unimpaired the blessings of liberty, consecrated by the sacrifices of the Revolution.

That’s unequivocal...unless an American citizen is an actual member of the U.S. military, he/she has the RIGHT to a jury trial in civil court so long as those courts are in operation. That’s it, no exceptions for American POWs, etc. Let me repeat this again...you’ve been a bit slow on the uptake:

All other persons, citizens of states where the courts are open, if charged with crime, are guaranteed the inestimable privilege of trial by jury. This privilege is a vital principle, underlying the whole administration of criminal justice; it is not held by sufferance, and cannot be frittered away on any plea of state or political necessity.

In short, Scalia was correct in his ruling, and only an activist would blame him for ruling properly. But, perhaps your "direct sources have told you differently. What a joke!

The rest of your post is mere diatribe. The Taliban didn’t have formal uniforms (nor did our Afghani "allies"). Trying U.S. citizens in civilian court even during wartime has been the precedent...hardly worth arguing about. As for jurisprudence being easy, I guess that’s why people go to law school for so many years, huh? Because it’s like falling off a log! You’re a funny (but deeply misguided) man.

For someone who continually makes rudimentary errors about legal theory, such as calling Scalia a constructionist, it seems odd for you to be lecturing about who knows law. You do a fine job of finding the holding of the case. You get a gold star for the day. Your inability to recognize that the last paragraph makes possible Ex Parte Quirin by noting the distinction shows your incapacity to get beyond simple holdings. Perhaps this is why you find jurisprudence so difficult. And as for holding, Quirin expressly held that enemy combatants aren’t entitled to trials in art. III courts. If, arguendo, Milligan’s holding is as broad as you suggest, then it is overruled by the subsequent decision in Quirin. So, to counter your ridiculous argument, it is not activism to note that Scalia’s opinion is not consistent with a long-standing precedent (Quirin), which itself rested on a distinction recognized by an even older precedent (Milligan). Scalia could cite to no authority for his position other than criminal cases, which were inapposite for reasons that I would expect him to understand, even if you don’t.

The rest of your post only reveals the depths of your ignorance. The fact that the Taliban doesn’t have uniforms does not relieve them from that requirement of the laws of war any more than it relieves terrorists or other members of AQ. The law of war requires uniforms to channel behavior; your enlightened theory would give new entrants an incentive not to wear uniforms--that is, they could appeal to the protections of the laws of war without having the concommittant burden of wearing uniforms which prevent them from blending into the non-combatant populations.

As for three years of law school being necessary to parse a case, pulhleease. First, many can do so without attending law school. You yourself have demonstrated at least the ability to find the holding of a case without going to law school. (If I am mistaken and you did go to law school, then you should really seek a refund. Not knowing that prosecutorial discretion does not constitute precedent of any kind as a matter of law is such a frivolous error that any law school granting you a degree would likely have an auto body repair shop attached to it.) Law school teaches a number of different codes and areas of practices. Jurisprudence is normally one, unrequired class. Applying the law is not that difficult in most cases; contorting it to fit your policy desires is more complicated, as you so well know.

So, since you seem fit to throw the activism mantra around without knowing what it means, why don’t you explain why it is that issuing a bad commerce clause decision is just fine so long as it meets your own policy objectives about marijuana? Oh, I know. It is only activism when someone actually applies the law (as in Thomas’s decision in Hamdi, which unlike Scalias actually applied precedent rather than disregard it) in a way you disagree with instead of applying their will in a way in which you agree.

I repeat Comment 20.

OV, I can’t let this guy impune Justice Scalia...I’m sorry, the guy’s way off base and I just won’t allow that to go unanswered.

I meant ’impugn’...Peter, you really need software that allows people to edit their posts. Grumble.

You know, JW, I was about to suggest that you get your money back, but then I don’t suppose the University of Phoenix gives refunds.

You’ve made a serious error here, one that Scalia DID NOT make. You note that "enemy combatants" are not granted civilian trials under article III of The Habeas Corpus Act of 1963. That is correct...but unfortunately for you Bush has not activated those laws in the current War on Terror. Here is the passage I think you refer to:

The President was authorized by it to suspend the privilege of the writ kf habeas corpus, whenever, in his judgment, the public safety required; and he did, by proclamation, bearing date the 15th of September, 1863, reciting, among other things. the authority of this statute, suspend it. The suspension of the writ does not authorize the arrest of any one, but simply denies to one arrested the privilege of this writ in order to obtain his liberty.


It is proper, therefore, to inquire under what circumstances the courts could rightfully refuse to grant this writ, and when the citizen was at liberty to invoke its aid.


The second and third sections of the law are explicit on these points. The language used is plain and direct, and the meaning of the Congress cannot be mistaken. The public safety demanded, if the President thought proper to arrest a suspected person, that he should not be required to give the cause of his detention on return to a writ of habeas corpus. But it was not contemplated that such person should be detained in custody beyond a certain fixed period, unless certain judicial proceedings, known to the common law, were commenced against him. The Secretaries of State and War were directed to furnish to the judges of the courts of the [71 U.S. 2, 116] United States, a list of the names of all parties, not prisoners of war, resident in their respective jurisdictions, who then were or afterwards should be held in custody by the authority of the President, and who were citizens of states in which the administration of the laws in the Federal tribunals was unimpaired. After the list was furnished, if a grand jury of the district convened and adjourned, and did not indict or present one of the persons thus named, he was entitled to his discharge; and it was the duty of the judge of the court to order him brought before him to be discharged, if he desired it. The refusal or omission to furnish the list could not operate to the injury of any one who was not indicted or presented by the grand jury; for, if twenty days had elapsed from the time of his arrest and the termination of the session of the grand jury, he was equally entitled to his discharge as if the list were furnished; and any credible person, on petition verified by affidavit, could obtain the judge’s order for that purpose.

As Scalia notes, since Congress has not suspended habeas corpus, none of this logic about prisoners of war applies to American citizens in the current War on Terror. Milligan goes on to make it quite clear (comment #25 above) that, sans suspension of habeas corpus, ALL American citizens are entitled to counsel and a civilian trial so long as civil courts are operating.

As for your "settled law" argument, are you saying that the Supreme Court is infallible? Does that mean that you accept as Constitutional Bakke or Grutter (or perhaps this new monstrousity about public takings)? If you do, you’re an idiot. All Scalia has done is to call an old (really shaky) SC decision into question, and he has done it in a way that is UTTERLY faithful to the law and the Constitution.

As for the medical marijuana case, OH NO YOU DON’T. I’m sorry that you are losing this argument over Hamdi, but there’s no time to start on that. We are about to be sunsetted.

And, oh yes, I forgot. Why don’t you shut up about Scalia and constructionism. I am WELL AWARE

And, oh yes, I forgot. Why do you hammer away on my assertion that Scalia is a constructionist? I am well aware that he denies it, but I think even judicial junkies (people like you, I guess) think of him in those terms. If you disagree, how about an explanation of why you think that (if you can wedge it in between all your insults and pseudo-intellectualism)?

And to the readership, forgive the multiple posts. It was a long hard day at work, and then to come home to THIS...ARGH. I apologize for the arrows...errors. :)

You went off on quite the tangent. I was not referring to the habeas corpus act, but was referring to art. III of the Constitution. The habeas corpus act doesn’t apply because of the status of the detainees, as was explained in Quirin.

I don’t suggest that the Supreme Court is infallible, but to overturn a prior precedent, you have to give a reason other than you don’t like the outcome--even the most extreme activists go through some motions in this regard. You have hypterventilated over my and Thomas’s suggestion that Due Process doesn’t require a trial (or if it does, it only requires a determination into whether the Executive has made a determination as to enemy combatant status), but you and Scalia provide no reasons other than personal policy preferences. Your suggestion that I am horrible to suggest that Due Process is not as broad as you would like it to be is precisely the same argument that NARAL uses to defend the most extreme positions on abortion. Fine company you have.

The closest you come to an argument is a contradiction: 1) you argue that there is too much water under the bridge to go back to original meaning. But there was no "water" after Quirin, so its not clear what you mean. Quirin was the last case, and it was controlling. Even if your myopic interpretation of Milligan is correct, that doesn’t matter, because Quirin supercedes it. 2) You argue that Quirin should be overturned. Other than the sudden lack of the aforementioned water, why? You have to give me a reason for why Due Process requires a hearing for holding non-criminal detainees who are designated enemy combatants. Simply reciting the holding in Milligan doesn’t cut it, because 1) Milligan was a criminal case, 2) it concerned someone who was not a POW or enemy combatant, 3) to the extent that it would require hearings, it is not legally controlling post-Quirin, and 4) it does not provide any historical or textual reasons for interpreting due process as you do in the current context. So again, I am fully prepared to join you in overturning Quirin, but I will not do it because it comports with your evolving standards of decency. You and Scalia must actually provide a basis in due process for your determination. So far, both you and Scalia have failed in this regard.

I have raised your activism concerning the mj case throughout this string, so your suggestion that I am raising it at the 11th hour is simply wrong. I take your inability to address this as an admission, which it must be considering your previous justification of Scalia’s position of purely policy grounds.

And I hammer on Scalia not being a constructionist because it demonstrates your fundamental lack of understanding. The error is important because it is so basic. Just like knowing that prosecutorial discretion isn’t precedent is basic. Just like knowing that the distinctions between criminal cases and non-punitive detentions is, if not basic, fundamental to a reasoned discussion on the topic. And so, when someone who claims to be an admirer of Scalia’s jurisprudence cannot even accurately tell me what his jurisprudential methodology is, I think that I, and the rest of the fair readers of this blog, have reason to question the breadth of your knowledge and the reliability of your conclusions.

Could you point out to me where in Article III in our Constitution that "enemy combatants" who are also U.S. citizens can be denied habeas corpus or civilian trials? Ain’t there. The court in Milligan was referring to the circumstances under the 1863 Act which could force trial by the military on U.S. citizens. Moreover, Quirin’s logic did not rest on the Constitution, but rather on Milligan and, as I’ve amply demonstrated, Milligan’s assumption that habeas corpus and civil court could be denied to U.S. citizens under certain circumstances rested on the Habeas Corpus Act of 1863, under which the defendant was arrested (rather than on abstract reading of the "laws of war" or on the Constitution itself). Since that act SUSPENDED the constitutional rights of all U.S. citizens, they were pointing out that none of those conditions pertained to Milligan, and that indeed he was NOT an enemy alien, thereby invalidating his treatment as a non-citizen.


As Scalia therefore notes, that 1863 law does not apply today, Congress has not suspended habeas corpus, and so Hamdi’s rights as a citizen to a civilian trial are absolute. Quirin, on the other hand, asserts that the laws of war trump the Constitution, but only under certain circumstances. Haupt was an undisputed "enemy combatant," Hamdi was not. Moreover, that court went to great pains to point out that those German "enemy combatants" were on our own soil...they invaded the U.S., which would also allow the laws of war to apply. Again, this is not true for Hamdi.

In short, your account of the jurisprudence in this area chases its own tail...it’s a house of cards, and I think you know this. As for why we should overturn Quirin, how about this:

Art.III, Sec. 2, Clause 3: The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

The military has no right to determine the guilt or innocence of any U.S. citizen (other than its own personnel). Enemy aliens, sure, no problem. But citizenship has to mean SOMETHING.

As far as your other points, I find them irrelevant. If the medical marijuana case should come up in a thread, I’ll be glad to discuss it with you.

You still fail to understand the basic principles I mentioned at the bottom. Your closing citation does not apply, because Hamdi was not being held on criminal charges, but as a POW (in this case, an enemy combatant, which in the instant case applies rather than POW status because he failed to adhere to the laws of war). So your glorious citation doesn’t apply ("trial of all crimes . . .").

You still are a bit slow on understanding that when I say art. III trial, I am referring to the courts authorized by art. III (as opposed to tribunals authorized by art. I or II). My statement was that there is nothing (outside of Milligan IN THE CRIMINAL CONTEXT, perhaps) which states that art. III courts are necessary for Due Process. The fact that Hamdi contests his enemy combatant status is not determinative. The question is what Due Process require for a deterimination that an individual is an enemy combatant and may he held as such without the filing of criminal charges. You are the one who is chasing your tail. You presume the necessity of an art. III trial as a prerequisite for Due Process, but that is assuming the conclusion.

Your attempt to distinguish Quirin is unavailing. Outside of the undisputed question [I can’t recall, by the way, whether the Quirin court talks about whether Haupt disputed his status as an enemy combatant. I think they found it irrelevant to the inquiry, and did not talk about it. I think it is a fair assumption that Haupt would have disputed his status.], which again simply begs the question of which branch must make the determination, you point to the locus of the harm as being necessary to invoke the laws of war. Again, you show your ignorance of the laws of war. Taking up arms against the U.S. triggers the laws of war, whether you are on U.S. soil or not. Quirin clearly applies. If you don’t like it, that’s fine, but at least offer real arguments, and not these legally erroneous distinctions.

Where precisely is the "citizenship has to mean something" clause to which you refer. Sure, it means that if you are captured and charged with a crime, you are entitled to relief. But it does not mean that you can’t be detained as an enemy combatant or POW when you are captured on the battlefield. To say otherwise would raise questions about the capacity of the Executive to conduct the war. You have failed to suggest why it is that the military could have authorized Hamdi executed on the battlefield after capturing him, without trial, but that they may not detain him without affording habeas corpus. The fact is that the law of war applied, and as Quirin notes, it does not entitle him to habeas relief for non-punitive detention.

That you find my points on the distinction between criminal and non-criminal detention irrelevant suggests that you have no understanding of the law of war--something that was evident by your statements about the locus of the injury in Quirin as well. For the interaction between the law of war and the Constitution, it makes all the difference.

See, e.g., Comments 20 and 27.

OV, one of our strengths as conservatives and Republicans is that we, unlike the Democrats, have ideas and occasional disagreements. Although I’m sad that thinking like JW’s is all too common in the conservative movement (making us vulnerable to charges of authoritarianism and even fascism -- remember the Japanese internment), I think overall such disagreement is healthy. It keeps us green and growing, unlike those other people.

Well, you continually accused me of being ignorant, but your view of this case isn’t very common. The American Bar Association protested this diminishment of citizenship rights, as did the Cato Institute. Scalia’s really is the mainstream view here, and that’s because his view is solidly rooted in the law. And, I might note, the a very fractured Supreme Court managed to base its partial support of detainment on 1) a broad reading of a too-broad AUMF signed in 2001, and 2) the general notion in the "law of war" that enemy combatants can be held as POWs for the duration. Essentially, our illustrious court has substituted 2001’s Authorization to Use Military Force as a new Habeas Corpus Act of 1863...this and this alone stripped Hamdi of his rights as a citizen.

Not surprisingly, many of us (probably most of us) don’t subscribe to the notion that the Justice Department or the U.S. Military can be cop, jailer, judge and jury all wrapped up into one. The AUMF doesn’t suspend anyone’s fundamental rights, and of course the court agreed that, at least for American citizens, detainment and prisoner status should be determined by a civil court. Scalia goes further, quite rightly arguing that any U.S. citizen who is also an "enemy combatant" is by definition a traitor and should be tried in civil court. That seems simple enough, even for someone like you. All along you’ve insisted that this issue was a clear as crystal, and that only an ignoramus could side with Scalia’s reading. Well, my friend, the see-saw battle in the courts, the factured (and tortured) Hamdi decision, and a hundred other scraps over this issue (e.g., this thread) clearly demonstrates you ARE WRONG. Jurisprudence isn’t simple, people of good faith can disagree on this, and the whole thing’s as clear as mud.

I encourage anyone who reads this to get online and read these decisions for yourself:

Terrorism and the Law of War

Ex Parte Milligan

Ex Parte QuirinHamdi v. Rumsfeld

Anyone who actually reads this will find very little legal foundation for detaining an American citizen indefinitely, depriving him of counsel and habeas corpus, and dragging him before a military tribunal. What you will find is that 1) the law of war is generally restricted to enemy aliens, 2) that Milligan is clear about the rights of citizens (the fact that it was a criminal case is irrelevant given its use to justify Quirin and Hamdi, 3) that American citizens, even as POWs, retain their civil liberties. Neither the Constitution itself, nor the "law of war," make any allowances for stripping American citizens of their basic rights (unless the courts are not operating, or unless they are American military personnel).

This is the link for Hamdi:

Hamdi v. Rumsfeld

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