Posts Tagged ‘war’

When Thinking About Obama’s Supreme Court Nominee, Just Remember the Law of 5

April 9, 2010

As I said in post last year when Justice Souter announced his retirement, I warned that putting a liberal Scalia on the bench would be an epic mistake.  In that post, I said the most important rule to remember is the “Law of 5,” referring to the proposition that Justice Brennan lived by–“You can do anything with 5 votes.”  What we have seen in the past decade is Justice Stevens take on the role once performed by Justice Brennan.  With a Court evenly dividend between the “liberal” and “conservative” Justice with Justice Kennedy in the middle on many votes, Justice Stevens used the “political” skills acquired over a career of 34 years to convince Justice Kennedy to side with the liberals rather than with the conservatives many times.  Using those skills, Justice Stevens was able to shape areas such as the War on Terrorism, Death Penalty jurisprudence and the environment.  He did this by making compromises on the legal basis for many decisions, narrowing the results others or using his power to assign the opinions to Kennedy to get Kennedy’s vote.

Did he win all of these battles?  No, just look at cases such as Bush v Gore or Citizens United v FEC.  But he did get a majority for more liberal results more times than could be thought possible given the fact that for most of the past 20 years,  7 of the 9 Justices (including himself) were appointed by Republican Presidents.  It is this skill over all others and over any specific ideology that will be missed most by liberals.  And it is the skill to convince 4 others to join you that President Obama should keep front and center as he makes his decision on whom to nominate.

Where Will It End?

April 7, 2010

At his inauguration, President Obama said,

As for our common defense, we reject as false the choice between our safety and our ideals.  Our Founding Fathers, faced with perils we can scarcely imagine, drafted a charter to assure the rule of law and the rights of man, a charter expanded by the blood of generations.  Those ideals still light the world, and we will not give them up for expedience’s sake

I have written numerous times about the Bush Administration utter disregard for the Constitution and the separation of powers.  I wrote numerous posts about their claims of Article II powers to incarcerate anyone they labeled a terrorist without charges, the right to counsel or the right to challenge their detention in court.  Now, it turns out that the Obama administration has upped the ante.  According to the NYTimes,

The Obama administration has taken the extraordinary step of authorizing the targeted killing of an American citizen, the radical Muslim cleric Anwar al-Awlaki, who is believed to have shifted from encouraging attacks on the United States to directly participating in them, intelligence and counterterrorism officials said Tuesday.

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