Wednesday, October 12, 2005

Our "Trust Me" President

President Bush has nominated Harriet Miers for SCOTUS. As is well documented here and elsewhere, some conservative minded folks are upset at this uber-stealth candidate. I am one of those folks.

The conservative supporters of the President's choice repeat the mantra that we should "trust" this President. After all, he nominated a few people who were "so conservative" in their judicial philosophy, and the Democrats disliked so much, that they made asses of themselves by filibustering ABA "qualified" and "highly qualified" candidates.

President Bush promised in his campaign to appoint Judges in the mold of Scalia and Thomas to the Supreme Court. While I do not agree with these guys all the time, they are clearly the class of legal thought on today's SCOTUS. And I concede that Thomas did not make me excited when he was appointed, though at that time I would be considered much more liberal in my world view of Constitutional law. Not all of of those thoughts have disappeared.

Anyway, I wanted to take a quick look at the "trust me" President. Should we trust President Bush on issues of Constitutional law? Should we trust that he has picked a potential justice, in light of the fact that we will likely have nothing to work with other than her hearings, during which every candidate since Bork says the same thing? Should we trust him that in addition to his campaign promises, he also takes an oath to uphold the Constitution.

Should we trust Bush on this subject? In a word: NO.

Think for a moment about the Supreme Court decisions of the last few years that most upset the conservative side of the blogosphere and punditry. A few come to mind quickly. McCain-Feingold. Kelo. The medical marijuana case. Where was Bush on these?

Well, Bush signed the awful McCain-Feingold bill. Oh, he mentioned a few "constitutional concerns" in his press release.


Certain provisions present serious constitutional concerns. In particular, H.R. 2356 goes farther than I originally proposed by preventing all individuals, not just unions and corporations, from making donations to political parties in connection with Federal elections.
But even those concerns were limited to individuals. Unions and corporations don't have First Amendment rights Mr. President? But no matter. Signing the bill was a campaign promise broken.

Mr. Bush's decision to sign the bill was especially disappointing because he had declared in 2000 that he would only sign something that contained several key principles. One of those, according to his campaign literature, was: "Preserve the right of individuals and groups--from the Christian Coalition to the Sierra Club--to run issue ads. Sen. McCain would protect incumbents from scrutiny by unconstitutionally restricting the rights of citizens to engage in issue advocacy." This bow to the First Amendment was one reason some people supported Mr. Bush over John McCain. Yet in the end, Mr. Bush signed McCain-Feingold even though it violated nearly all of those principles.

When the case hit the Supreme Court, McConnell v. FEC was decided adversely to the First Amendment. Conservatives were in an uproar. Surely, Bush realized what a travesty this law was?

No. The administration defended the law before the Supreme Court.

Supporters of the law, including the Bush administration, say it is designed to prevent corruption in politics. . . . In his brief outlining the government's position, Solicitor General Theodore Olson wrote, "Both in campaign-finance legislation and in a broad range of other laws, Congress has limited the flow of money to federal officers in order to safeguard the integrity of government operations. Because federal elected office-holders are inextricably linked to their political parties, Congress reasonably concluded that large donations to party committees pose a threat of corruption similar to that created by large donations to candidates."
McCain-Feingold passed both houses with less than 2/3 of the vote. Who do we have to thank for this monstrosity of constitutional law legislation? President Bush, more than any single person. Thomas and Scalia, Bush's model judges, disagreed with Bush's position on this.

Next, we have the awful decision decried by every right of center and libertarian pundit out there: Kelo v. New London. This case came before the Supreme Court just last year. Surely, the conservative constitutionalist President Bush would have his administration's attorneys and the Department of Justice take a position on this groundbreaking, important eminent domain decision.

No. Thomas and Scalia dissented. Bush said nothing.

But trust President Bush. He knows what is important in constitutional law.

We also have the nice, security oriented story of Mr. Jose Padilla. Mr. Padilla is accused of being a terrorist by the United States government. He is currently being detained without charge in a South Carolina military prison under orders of President Bush.

Padilla is a United States citizen. He was "captured" on U. S. soil. He has been held since May 8, 2002. No charges have been filed. No due process is being permitted. The Bush administration denies that he has any rights against the government's denial of his liberty since he is being "called" an enemy combatant. There is no public evidence that he ever held a weapon in opposition to the U. S. We are not in a declared state of war with anyone. Yet Bush declared that Padilla will be held indefinitely and only Bush can decide whether Padilla is an enemy combatant.

Now, some sincere conservatives are OK with this. Even Judge J. Michael Luttig, whom I would support for SCOTUS, ruled with a 4th Circuit panel in favor of Bush over Padilla this year. Nonetheless, there is ample conservative concern over this case in particular. Padilla is not like Gitmo. He was not captured on a battlefield or in foreign territory. He was not a foreign citizen. Each of these differences is huge.

The Constitution does not extend outside U.S. borders; immigrants can have conditional rights. Within the U.S. however, the 6th Amendment does not limit its application to subclasses of persons. The 14th Amendment guarantees all "persons" due process and all "citizens" their privileges and immunities. How is Padilla different? Trust Bush - he is.

Finally, by way of example, we have the medical marijuana case, Gonzales v. Raich. Well articulated outrage and confusion from the conservative punditry, as well as extreme disappointment with Scalia's concurrence, followed.

Where was Bush on this case? Surely he recognized the limits to the commerce clause and the importance of federalism? Are you joking? The Gonzales in the case was Attorney General Alberto Gonzales, appointed by President Bush. This case came to the Supreme Court precisely because Bush thought it important to trample federalist principles in favor of a uniform, Federal policy on drug laws. The case hearkened back to the days of Wickard v. Filburn, a case I will identify as one of the 10 worst Supreme Court opinions of all time one day in the near future *cough*.

Thomas dissented, thus disagreeing with Bush. As stated above, Scalia somehow found himself in the majority.

Well, I need to work. I could research this more, and encourage others to remind me of things I may have overlooked. Suffice it say that the Supreme Court constitutional law cases that my readers have complained about most the last few years (with the possible exception of Padilla, which has more support than the others) all have Bush on the "bad" side.

That is not the record of a President I just "trust" on Constitutional issues.

16 Comments:

At 12:25 PM, Anonymous David Earney said...

very well written.

 
At 2:14 PM, Blogger Masked Menace© said...

Of course, just for arguements sake, I could also put together a list of reasons why I wouldn't trust a number of so-called republican senators to vote along party lines to confirm a "hard line conservative judge".

John McCain (D-Media)
Arlen (Don't rile the Senate) Spector
et al.

 
At 2:49 PM, Blogger Brad Warbiany said...

Bush is not a constitutional strict constructionist. He is a Christian judicial activist. Bush wants to overturn Roe, and not for the same reason (and the correct reason, IMHO) that libertarians want to overturn Roe.

 
At 3:35 PM, Blogger Mike said...

Good point Brad. Where is Reagan when you need him?

The sad fact is that too many Americans think that they alone are empowered to decide what liberty means, exactly.

An even sadder fact is that I would be willing to wager that 99% of Americans don't believe in States' rights at all. I was talking online with a pretty right-wing friend of mine the other night. He couldn't understand why repealing the 17th Amendment would do so much good for this country.

Btw, good post KJ.

 
At 3:54 PM, Blogger Masked Menace© said...

A Theocrat, A Theocrat!

May we burn him?

 
At 3:58 PM, Anonymous Hummer said...

Does anyone have a duck?

 
At 4:50 PM, Blogger spd rdr said...

*cough* indeed.
You wait much longer, KJ, and I'm going to be all over the 10 Worst Cases!

Why a duck?

 
At 5:05 PM, Anonymous Hummer said...

Why does a witch/theocrat burn?
They are made of wood.
What does wood do?
It floats.
What else floats?
No not very small rocks. A duck.
So if the theocrat weighs the same as a duck then he is made of wood then he is witch then we burn him.

It is all in Monty Python and the Holy Grail.

 
At 2:52 AM, Blogger Cassandra said...

Oh, KJ :)

I am so tired. Too tired to even argue with you. But I will say this: you have done such a fine job here that I suspect even if I were on my game, you'd kick my ass and wipe the floor with me afterwards.

It's a good thing I don't have an ego problem - my nose would be distinctly out of joint :)

You make me want to rebut, just for the sheer fun of it. *That* would be a fight worth the having, counselor. Well done.

 
At 10:05 AM, Blogger Masked Menace© said...

This comment has been removed by a blog administrator.

 
At 10:06 AM, Blogger Masked Menace© said...

Whoops, typing error.


If any of you want to insult or attack me, you are always welcome at the Cheese.

Stubborn Mule! Hey, you asked for it. :-)

This comment is also cross-posted at Villainous Company.

 
At 10:10 AM, Blogger KJ said...

I think the term you are looking for MM is "jack ass." But that would be too similar to a Democrat, and that I am not.

 
At 10:29 AM, Blogger Masked Menace© said...

You know, I hate it when the person I'm insulting has better insults for themselves than I do.

 
At 1:16 PM, Blogger Cassandra said...

I love you guys.

[opening a beer]

 
At 2:58 PM, Blogger tee bee said...

Believe me, I'm not for unlimited, unmerited "support" of any leader or authority. They should never be the final say in the nation [albeit a republic] of "We the People."

That said, two things:

Padilla bears all the hallmarks of an islamofascist terrorist. Or maybe he's just falling back on his days running the streets of Chicago, and sharing it with his new America-loving friends in Egypt, Saudi Arabia, Afghanistan, Pakistan, and Iraq. Maybe he is being held for no good reason other than that.

But I doubt it. I expect that Bushco have something on him that is problematic to reveal and prosecute. Furthermore, the problem with terrorism is that it springs from within as well as without, but is no different an enemy. If Padilla is linked to alqaeda and militant islamic terrorists, how should he be processed? Should we wait until there's a crime to link him to? Should he be tried on the basis of an accessory, penalized, then released - where, exactly?

I don't think that one's so easy.

Second thing: I've noted on several occasions that Bush appears to be a respector of the process, and as such doesn't use the power of veto, doesn't square off on SCOTUS when we'd like, and won't retract Miers' nomination.

Is that a good thing? Not really [except in the case of Miers IMHO], but when you identify a consistent trait, it's more expedient and effective to seek strategy to nullify it than to try to get the leopard to change its spots. That's where our no-good reps come in. The weasels.

Thank you. Resume jousting, I'm wearing a false nose I should have removed now.

 
At 12:17 AM, Blogger Capital Freedom said...

Sadly, Bush has missed a great opportunity to nominate good Supreme Court Justices who have consistently demonstrated the knowledge and desire to uphold the Constitution. What has Harriet Miers done to demonstrate her knowledge of the law and the Constitution?

 

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