The Lichfield Group

This article appeared in the November 30, 2005 issue of the Washington Times.

President George W. Bush has acclaimed Associate Justices Antonin Scalia and Clarence Thomas as models for Supreme Court appointments. Associate Justice Stephen Breyer, the flip side of Scalia and Thomas, underscores President Bush’s judicial wisdom. In a series of lectures at Harvard University on November 17, 18, and 19, 2004, styled “Our Democratic Constitution,” Justice Breyer celebrates an extra-constitutional and pliable standard of interpretation indistinguishable from rule by Platonic Guardians. His teaching that “active liberty” as conceived by a French political philosopher in 1819 should inform Supreme Court edicts makes the case for President Bush’s likely appointees better than the President himself.

Federal courts have occasionally erred in handcuffing congressional or executive initiatives to defeat global terrorism since 9/11, for example, endowing illegal combatants captured in Afghanistan, indistinguishable from Nazi soldiers taken prisoner during the Battle of the Bulge, with a right to challenge the constitutionality of their detentions in federal courts. But Congress, the President, and local authorities have been equally if not more guilty of gratuitously compromising civil liberties and of slipshod counterterrorism legislation. Judicial review, with all its wartime deficiencies, should remain undisturbed to prevent national self-preservation from degenerating into promiscuous lacerations of cherished individual freedoms. Two recent court decisions are convincing.

Senator Arlen Specter (R. Pa.) has not earned elevation to the chairmanship of the Senate Judiciary Committee. It will stand at the commanding heights of the Republican Party agenda during President George W. Bush’s second term. Three major tasks will confront the chairman: confirming Supreme Court nominees; ending unconstitutional filibusters that thwart judicial confirmations by simple majorities; and, passing legislation to strengthen the President’s power to wage war against global terrorism. In all these respects, Mr. Specter is not the superior choice. The chairmanship should crown a Senator whose loyalties to the Republican Party mainstream are unwavering and enthusiastic.

Chief Justice of the United States, William H. Rehnquist, may soon retire because of ill-health or otherwise. President George W. Bush’s appointment of a successor could mark a turning point in constitutional law every bit as momentous as the appointments of Chief Justices John Marshall, Roger B. Taney, or Earl Warren.

With so much riding in the balance, President Bush should honor his campaign pledge to appoint Supreme Court Justices in the mold of Associate Justices Antonin Scalia and Clarence Thomas. Senate Democrats should renounce use of the filibuster against a Supreme Court nominee as a subversion of the constitutional requirement of a simple Senate majority to confirm. If that renunciation is not forthcoming, the Senate Republican majority should vote that such filibusters are unconstitutional and thus unenforceable to prevent a Senate floor vote on a judicial nominee.

To paraphrase Oliver Cromwell, the United States military has stayed in Iraq too long for any good it has been doing lately. It should depart, and the United States should be satisfied with the overthrow of Saddam Hussein. A continuing military presence will not secure democracy in Iraq, as the past year’s chaos and chronic clashes convincingly confirm. Further, President George W. Bush’s mulish pursuit of Iraqi democracy handcuffs the United States in opposing anti-democratic elements in Russia, the Ukraine, and throughout the Middle East because allies of any stripe are coveted to assist the Iraqi mission. The prudent statesman, like Bismarck after the Franco-Prussian war, recognizes the high water mark of military success, and avoids sacrificing even one soldier’s life in a futile cause.