Thursday, January 19

And Maybe I Was Mistaken...

when I said that partial-birth abortion was the only reason the Democrats opposed Alito. Perhaps, as it appeared from the hearings, that was the Senators' primary concern, but, as Dahlia Lithwick makes plain in Slate, for at least some Democrats that wasn't the primary concern.

Their primary concern was the rights of terrorists:

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.

I'll conceded her point that there is little precedent on how to treat illegal-alien terrorists captured wearing bomb-vests in shopping malls or on a battlefield far from US shores. To which I say, so what? Does she really care about the health and well-being of Abu Abu Jihadi Akbar? Well, in a word, yes:

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.

If you indulge me for a just moment and imagine Alito as a wolf (albeit a smart, qualified, principled one), I'm suggesting that if the court's abortion jurisprudence is made of some combination of straw and twigs, its war on terror jurisprudence is made of moth wings.

Cattle prod? Any evidence that they've used a cattle prod for interrogations of captured terrorists? And, again, if so, so what? You don't fight wars by Robert's Rules of Order. And since the Jihadis have been violating the Geneva Convention since before the War began, they don't apply, either. Of course, the Jihadis aren't the enemy, Judge Alito is:

The other case that would supposedly constrain Justice Alito's judgments about presidential power is Hamdi v. Rumsfeld, the 2004 blockbuster that allowed a so-called enemy combatant to challenge his indefinite detention, despite the Bush administration's claims that U.S. citizens could be locked up indefinitely without charges on the president's say-so.

So-called? Unless she wants to append unlawful to the enemy combatant designation, I think there is little question as to what the terrorists are. I suspect that Ms.Lithwick would consider both "unlawful" and "terrorist" to be a little too judgmental for her taste. After all, why should a judge be judgmental?

In the end, when it comes to questions about presidential war powers, it just doesn't matter all that much whether a judge is a strict constructionist or an activist, a pragmatist, a textualist, or an originalist. Judicial promises to respect precedent are almost immaterial when the precedents are either ancient or nonbinding. What matters most when the case law falls away are ideology and politics.

Ideology and politics, not justice? Not what is right?

What about winning the war?

Such considerations are, to Ms.Lithwick, if not entirely inconsequential, certainly not worth mentioning.

Update:
Ann Coulter: Mainstream Democrat (Hat Tip: Powerline via Puppy Blender)

I really hope the Democrats run on a Terrorists' Rights platform this fall. Filibuster-proof majority?

[Dark, malevolent laughter]

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