A Quick Reading of Boumediene

Three passages from the majority opinion's conclusion in Boumediene are worth your time (so is the rest of the opinion, but weighing in at 70 pages, it takes some time to digest):

Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and to interdict. There are further considerations, however. Security subsists, too, in fidelity to freedom’s first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. It is from these principles that the judicial authority to consider petitions for habeas corpus relief derives. ...

[more ...]

Within the Constitution’s separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person. Some of these petitioners have been in custody for six years with no definitive judicial determination as to the legality of their detention. Their access to the writ is a necessity to determine the lawfulness of their status, even if, in the end, they do not obtain the relief they seek. ...

The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law.

Remember that this was a 5-4 decision, that Justice Stevens will not live forever, and that John McCain would likely nominate as his replacement someone in the mold of Chief Justice Roberts or Justice Alito, both of whom dissented from the notion that indefinite detention should be subject to judicial review. The presidential election will have enormous consequences to our nation's commitment to the rule of law and to the constitutional values of freedom and fairness that have served us so well for so long.

< Boumediene and Eisentrager | With Dems Like These . . . >
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    so, the scenario you suggest, (5.00 / 1) (#4)
    by cpinva on Thu Jun 12, 2008 at 12:21:24 PM EST
    even with a strongly majority democratic congress in place (assuming the prognostications hold up for nov.), is that a pres. mccain would wield such political influence and power, that he would be able to bully that congress (as bush essentially did with roberts) into yielding on their "advice and consent" authority?

    that's some opinion you express, of democrats in congress; a bunch of weak kneed wuss's, eager to be led around by the nose by whoever occupies the oval office.

    frankly, given the lack of accumen that sen. obama has displayed, with respect to his various associations over the years, i remain unconvinced his selections for SC would necessarily be superior to those of a prospective pres. mccain.

    a pres. clinton causes me no such concerns.

    Huh? (none / 0) (#6)
    by Gabriel on Thu Jun 12, 2008 at 12:27:05 PM EST
    There's few to no examples of a SC nominee being voted down and when that happens, like with Bork, you simply end up with another conservative. The Senate defers to the President on this so the idea that a Dem Senate will stop McCain from nominating Alito-lookalikes is fantasy. It also makes no sense to pretend that there will be no difference between Obama's nominees and McCain's. That's just silly. They have very different worldviews.

    The President is supposed to... (none / 0) (#13)
    by Dadler on Thu Jul 17, 2008 at 01:24:16 PM EST
    ...seek the advice of Congress and obtain their consent regarding judicial nominees.  In other words, the president is tasked to convince Congress his nominees are acceptable.  Nowhere does it state congress "defers" -- which, by the way, means put off or delay and not acquiesce.  The entire premise of this nation was largely based on the notion that no single leader should be vested with that much power.  That would be a king.  The concept of which we supposedly rebelled against.  

    Also... (none / 0) (#14)
    by Dadler on Thu Jul 17, 2008 at 01:31:44 PM EST
    You contradict your own logic when you (for the most part rightly) criticize the poster for saying there wouldn't be much difference between an Obama or McCain nominee, because you have already tried to equate Robert Bork (the ethically challenged creep behind the Saturday Night Massacre) with just another conservative.  Bork was as uniquely unfit for the court as a fish is for a bicycle.

    Wow (none / 0) (#1)
    by Gabriel on Thu Jun 12, 2008 at 11:32:08 AM EST
    This is probably the best example of how different the US looks if McCain wins or Obama wins.

    I'm curious (none / 0) (#2)
    by jccamp on Thu Jun 12, 2008 at 12:02:19 PM EST
    on how you see any difference between HRC court appointees and Senator Obama's potential picks? Although many claim the McCain might actually pick more moderate appellate court judges than one should expect, I think there would be dramatic contrast between, say, a McCain USSC or DC Court of Appeals judge and Obama's. I was wondering what distance, if any, you would see between (a theoretical) Clinton choice and an Obama appointee.


    McCain strikes me as unlikely... (none / 0) (#3)
    by Jerrymcl89 on Thu Jun 12, 2008 at 12:13:41 PM EST
    ... to appoint judges who are moderate on issues of Executive Power. In some other areas, perhaps.

    I would not expect McCain to (none / 0) (#11)
    by litigatormom on Thu Jun 12, 2008 at 06:40:06 PM EST
    appoint judges who were moderate in any way.  The alleged issues on which he is allegedly (emphasis on the "alleged") more "moderate" than Bush -- global warming, campaign finance, torture -- do not hinge on the fine points of judicial philosophy. The only possible exception is torture, and he's already caved on that one anyway.  Remember too that he was an architect of the Military Commissions Act of 2006, including the now invalid provision divesting the federal courts of jurisdiction over habeas corpus petitions from Gitmo prisoners.  

    CLinton/Obama (none / 0) (#5)
    by progrocks on Thu Jun 12, 2008 at 12:25:45 PM EST
    they would appoint the same type of judges.  One of the only main differences would be that since he is a bit closer to the academic legal world, some of his choices might be a bit more bold. Yoshino for 2nd circuit! Maybe not that bold, but we will see.

    I think that Obama would lean toward the (none / 0) (#8)
    by tree on Thu Jun 12, 2008 at 01:15:05 PM EST
    U of Chicago view: the Cass Sunstein model, whereas Clinton would not. Less dangerous than judicial conservatives in the short run but just as deadly in the long run.

    Cass Sunstein On Record As Not Believing (none / 0) (#9)
    by MO Blue on Thu Jun 12, 2008 at 04:24:02 PM EST
    in the right of privacy.

    I share this concern (none / 0) (#12)
    by litigatormom on Thu Jun 12, 2008 at 06:41:45 PM EST
    Chicago school legal theory makes interesting reading, but often bad decisions.

    I love that succinct summary (none / 0) (#10)
    by litigatormom on Thu Jun 12, 2008 at 06:36:27 PM EST
    of Scalia's constitutional philosophy.

    But then again, what do you expect from the guy whose only justification of Bush v. Gore is "get over it."