For national security matters, the bad news was that David Souter never met an ACLU argument he didn’t like or an executive branch view he couldn’t brush off. The good news: unlike, say, Justice Stevens, Souter could never generate a new or powerful argument, or a clearly stated principle of law.
Thus the risk in Souter’s resignation. It isn’t that the replacement will add a new, lock-step member to the Court’s liberal faction on national security matters. Been there, done that — thank you, Dick Thornburgh and John Sununu. The risk instead is that his replacement will be an intellectual innovator on security issues, a decent writer who imports the new and often quite radical thinking of the self-styled “human rights” advocates opposed to robust national security powers.
Perhaps, for example, a Harold Koh – a citizen of the post-sovereign world where security threats are always overstated and American power is subject to limits found in the floating cross-border conversations of a thousand faculty lounges, foundation offices, and international bar associations. A more European world where, as our Attorney General and President are fond of promising, we must abandon the morally fraught acts that have always been integral to the nation’s defense and have our “higher values” determine the scope of lawful powers available to the Commander-in-Chief.
How have we gotten to a spot where a choice of Supreme Court justice can affect the nation’s security? Once upon a time, our federal courts left matters of foreign and military policy to the President and Congress. This was true for jurists of the left and the right. Democrats who ascended to the bench in the post-War period crafted many of the most important doctrines that kept the courts free from these disputes. But that consensus gave way to the great erosion of judicial humility in matters of policy, to the increasingly partisan disputes over the scope of newly imagined rights, and to the creeping internationalism that finds rights first among foreigners who would attack us rather than those here who would be attacked.
This suggests a possible silver lining in the resignation. It’s possible, just possible, that Souter’s replacement will be a throwback in this respect – to a time where even the most robustly liberal justice on domestic issues paused before opining on national security matters, and paused further before overturning the considered view of the President. There are candidates for appointment with executive branch experience or a sense of history or peril who might fit this description. But they are a distinct minority, and we should prepare for a braver, newer world where judges rather than generals or diplomats increasingly determine what best protects the nation.
9 responses so far
1 ottovbvs // May 1, 2009 at 1:43 pm
“Perhaps, for example, a Harold Koh a citizen of the post-sovereign world”
The dean of Yale law school. A really dangerous man. The paranoia runs rampant.
2 sinz54 // May 2, 2009 at 7:32 am
Mr. Klingler: Yours is a terrible argument. You’re basically arguing that you’re afraid of liberals who might be at least your intellectual equal.
I’m not afraid of intelligent men who happen to be politically liberal. Because I’ve always believed that left-wing ideas are, more often than not, fundamentally flawed. It doesn’t matter if they’re argued with intelligence, persuasiveness, and skill. Because the logic and evidence is still on the side of us conservatives.
Liberalism, no matter how persuasively argued, cannot convince the American public that the breakdown of social order should be tolerated (or even encouraged) at home, or that we should look the other way at foreign threats abroad.
There were some very intelligent scholars on the very liberal Earl Warren Court in the 1950s and 1960s. But the public turned against that Court anyway, and demanded that balance be restored. Because the public had soured on what liberalism had done to the nation. And so did I.
3 ottovbvs // May 2, 2009 at 8:59 am
sinz54
7:32 AM
“Because I’ve always believed that left-wing ideas are, more often than not, fundamentally flawed. It doesn’t matter if they’re argued with intelligence, persuasiveness, and skill. Because the logic and evidence is still on the side of us conservatives.”
……Sinz unless you believe the world is a more conservative place that it was in 1909 or 1809, the logic and evidence seems to have been on the side of the liberals.
Liberalism, no matter how persuasively argued, cannot convince the American public that the breakdown of social order should be tolerated (or even encouraged) at home, or that we should look the other way at foreign threats abroad.
…..Perhaps you could tell me where Liberalism advocates the breakdown of the social order in the USA. And how FDR, Truman or Kennedy looked the other way at foreign threats. These three presidents all Democrats essentially created the whole modern defense system.
4 sinz54 // May 2, 2009 at 10:24 am
A long series of anti-police rulings by the liberal Warren Court gutted the ability of the police to deal with crime and social breakdown. Through such ludicrous logic as the Griswold v. Connecticut opinion, they extended the Fourth Amendment into some generalized “right to privacy,” something that the Founding Fathers had never specified. The Warren Court went so far as to disturb even some thoughtful liberals like Theodore H. White (cf. “The Making of the President 1968″). Some of those rulings, to this very day, restrict the Government’s ability to deal with the terrorist threat.
Liberals had tolerated urban riots in the 1960s. They looked the other way and even rationalized black violence in the ghettos and antiwar violence on campuses.
Liberals had argued that defacing subways and other public property with graffiti was just “artistic self-expression.” This kind of “self-expression” made New York City and other major cities look like pigsties, and accelerated the flight of decent people to the suburbs.
At one point, the New York Times had actually claimed that high crime in New York City was just part of New York’s “charm.” I’m not joking.
As far as foreign threats are concerned, by the 1970s, the Democratic party of Harry Truman had become the Democratic Party of George McGovern, Ron Dellums, and Jimmy Carter. None of whom was fit to shine Truman’s shoes. Which is why Carter lost in a landslide to Reagan.
The old Democratic Party of liberal hawks is dead. Those who didn’t retire or pass away, became neo-conservatives and left the Dem Party. Jeane Kirkpatrick, Ben Wattenberg, etc.
The ONLY remaining liberal hawk is Joe Lieberman. And we saw what the DailyKOS tried to do to him.
5 larryo // May 2, 2009 at 11:24 am
“A long series of anti-police rulings by the liberal Warren Court . . .”
They were not anti-police rulings, they were anti beat-a-confession-out-of-the-most-convenient-suspect and anti search-anyone-at-any-time-regardless-of-probable-cause rulings.
Second, the reason the founders said nothing in the Constitution about “privacy” was that in the 1770’s the word referred to matters of the toilet. What do you think the Fourth Amendment was included to protect, sinz, if not what we now refer to as our privacy?
Third, George McGovern, Ron Dellums, and Jimmy Carter were excoriated as traitors for opposing the war in SE Asia; they were right to do so all the time, and the supporters of the war were either gulled or were liars.
Finally, what you will not see – what you refuse to see – is that our national security is not dependent spending every dime we have on weapons or on displays of martial belligerence.
That should be obvious to even the most casual observer by this time, as it should be obvious that the militarists, the imperialists, the defense contractors and all their respective toadies who gave us the war in SE Asia and then this embroilment in the middle east value only their own enrichment and their narrow, warped and murderous agendas.
And you are one of their apologists.
6 sinz54 // May 3, 2009 at 6:50 am
larryo: NO. I am not one of their “apologists.”
I’m one of their cheerleaders!
I liked them, a heck of a lot more than I like you.
7 ottovbvs // May 3, 2009 at 7:15 am
sinz54
10:24 AM
Judging by these comments I don’t think you were around at the time of the Vietnam war or the era of desegration. A time when the country was being torn apart by a totally futile war and the assassinations of both Kennedy’s and MLK. Most of the Warren court’s rulings remain intact including the right to privacy and yet crime has declined dramatically since the sixties and society has not fallen apart. Quite the contrary in fact I’d say in most areas of social activity society is more much more harmonious than it’s ever been.
8 ottovbvs // May 3, 2009 at 7:19 am
sinz54
wrote 19 minutes ago
“larryo: My only regret is that we didn’t crush you Leftists in the 1960s.”
……What’s Frummie saying elsewhere about anger and intemperance on the right…..
9 jfrankparnell // Jun 13, 2009 at 5:07 pm
The author quite appropriately places the notional concepts of “human rights” and “higher values” within double quotes. Doing this consistently will have a salutary effect on both our Party and our great Nation. For if we can do this consistently, it will slowly but surely divest such terms of any remaining power. The basic progression is:
idea -> “idea” -> what’s that you’re saying?
More examples (some of these are already working!):
torture -> “torture” -> enhanced interrogation techniques
Bill of Rights -> “an ACLU argument” -> hey, if you don’t have anything to hide then you have nothing to worry about
It may seem reckless or misguided to intentionally erode the meaning of combinations of words associated with “cherished American principles” (see how easy?), but the tragic events of 9-11 compel us to a sobering truth: that by *not* doing so we are practically inviting the Terrorists to come and kill us in our beds. And think of how immoral that is!
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