13 September, 2005


John Roberts has precious little experience on the bench. A scant eighteen months, bare qualification for the position of Chief Justice of the Supreme Court. And scant basis for anyone to decide what his beliefs are.

The press has focused on his likely stance on Roe v. Wade, but this seems to me to be a misdirection from a more pertinent question, and the one I think he was likely nominated for, that of illegal combatants.

Most of the "judicial activism" that's been occurring over the past few years has been directed towards building up a very frightening sort of executive authority. Hundreds of individuals have been held without trial, in two notable instances American citizens.* One of the few significant cases Roberts ruled on was Hamdan v. Rumsfeld, tried in the D.C. Circuit Court of Appeals. Hamdan, the personal driver of Osama bin Laden, sued to be tried by a court-martial rather than by the tribunals created by the executive branch. In the end, the court ruled that Congress had authorized the creation of such tribunals and thus that they had sufficient jurisdiction to try Hamdan.

Roberts' presence in this business raises several issues. Foremost is the fact that he did not recuse himself from the case upon learning he was in consideration for a Supreme Court position. Here's Russ Feingold (delightfully feisty in these hearings) interviewing him on the subject:
FEINGOLD: Let me talk to an aspect of the case that I think you can speak to. Many people were surprised to learn in your questionnaire submitted to the committee that you were interviewed by the attorney general in connection with a possible vacancy on the Supreme Court on April 1st of this year. Just six years (sic) before, you sat in the panel that heard oral arguments in the Hamdan case. While the case was still pending, before a decision was issued, you had additional interviews in May with the vice president, the White House counsel, Mr. Karl Rove and other top officials. I'm going to give you an opportunity to explain why you think it was not necessary for you to recuse yourself from this case, but first I'd like to know: Did the possibility of recusal, because you were under serious consideration for Supreme Court, occur to you or was it raised with you at any point prior to the oral argument in the case?
Take note of this circumstance, because it might shortly come up again. Not two days past another significant ruling came out on the detention of Jose Padilla (Eric Muller on that case), again in Bush's favor. Again one of the judges on the 4th Circuit Court of Appeals, Michael Luttig, is in consideration for a Supreme Court position.

Conflicts of interest and ethics aside, there's the alarming fact that the Supreme Court is going to be stacked with people who apparently have little regard for civil liberties and are willing to make rulings (hanging on the barest of legal threads) sacrificing those liberties to executive authority. The Court itself hasn't been entirely friendly to that purpose to date, ruling to check executive power in Hamdi v. Rumsfeld (another American citizen) and Rasul v. Bush. If that changes, a very basic right of Americans is in danger of being eroded away.

* I'll point out that in the single instance of a white American having been detained in the War on Terror, he was quite speedily tried and convicted in normal fashion. I doubt this was an accident.

This is a questionable ruling, since Congress did not explicitly authorize the president to create the tribunals, and previous precedent has been to be extremely conservative with regards to questions of civil liberties. Interpreting Congressional silence in favor of executive authority rather than in favor of civil liberties is dubious; the same logic is applied in the Padilla case by Luttig (see comments by Eric Muller, linked above).

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