It starts today
It took a couple of weeks but we are finally seeing potshots getting taken at John Roberts. NARAL is running a TV ad that accuses him of supporting fringe groups. What the ad neglects to mention is that the current court agreed with the brief he wrote in a 6-3 vote.
The other shot hits a little closer to home for me. In a district court ruling last month, Roberts and two other judges gave the executive branch broad authority in their legal prosecution of terrorist suspects held at Guantanamo. This case will almost certainly go to the Supreme Court and could lead to a split decision because of Mr. Roberts need to recuse himself (should he be confirmed).
I have long been torn on the issue of Executive powers during wartime. After putting a lot of thought into. I believe that both sides have got this one wrong. What's interesting is that I don't think I'm viewing this through the lenses of a centrist trying to comprise a left/right problem. I see this as a businessman trying to find a solution to two related but equally crappy problems.
The problem is that certain undesirable things must be done with regards to wartime trials. The names can't be released very often because if the other side knows who is captured they'll know what plans are likely compromised. Contact can't be permitted with the outside world because of the ease with which a message could be passed. Exact crimes can't always be specified because of the disclosure requirements for a fair trial. Consequently, criminals can sometimes be detained for extensive periods of time without having an opportunity to demonstrate their innocence. While I acknowledge that all of these steps need to be taken I also acknowledge that every single one of these things is bad and, to varying degrees, un-American.
The solution, I feel, is to create some kind of mechanism by which we can allow these things to continue without feeling like we are potentially infringing upon our civil rights. The way in which this should be done is to provide some kind of Judicial (preferable to the political and leaky nature of the Legislature) check to the Executive's power. I'm okay with them meeting in secret and I'm okay with not knowing what was done or said for a very long time. I just want to know that somebody outside of the military and the Executive branch is looking at these things to be certain that things aren't going to far.
3 Comments:
A few comments and quibbles.
1. Roberts is on the D.C. Circuit, properly referred to as the “court of appeals” or the “circuit court.” “District court” is the federal name for the trial court.
2. I do not believe Roberts would have to recuse himself if the Supreme Court took the Hamdan case (which I doubt it will, anyway), though certainly Hamdan’s lawyers will argue for that.
3. You appear to be conflating what is good policy with what our courts should hold is constitutional (a common mistake by nonlawyers, and sadly a common strategy by lawyers as well). Or perhaps you just jumped from mentioning one to discussing the other.
4. The media normally does an awful job explaining what happened in a court decision, and USA Today meets that low standard. The case was dismissed for lack of jurisdiction, not decided on the merits. (
href="http://www.cadc.uscourts.gov/bin/scripts/isysweb/isyswebext.dll?op=get&uri=/isysnative/UDpcb3BpbmlvbnNcMjAwNTA3XDA0LTUzOTNhLnBkZg==/04-5393a.pdf#xml=http://www.cadc.uscourts.gov:81/isysquery/irl2600/1/hilite" >See
the opinion here .) Though the court did state that the Geneva Convention does not apply to Al Qaeda, the actual basis of the decision was that the Geneva Convention granted no jurisdiction for a federal court to hear a civil lawsuit asserting treaty protection, brought by a noncitizen who has never set foot in the United States. The court was bound by a WWII-era decision (Eusentrager) that was directly on point. (The court also stated that even if Gen. Con. Article 3 applied and granted jurisdiction, Hamden would be required to exhaust his military remedies before bringing the lawsuit, meaning he’d have to go through the trial first, and then the federal court would review the fairness of the trial).
The appeals court noted specifically that “Hamdan chose to ignore the decision in his brief.” In other words, the government cited Eusentrager, and Hamdan didn’t respond, which should give you an idea of how bad this case was for his cause. Later, his lawyers complained in the media that Eusentrager shouldn’t apply on grounds that completely fail to attack the soundness of its reasoning (essentially saying it should be ignored because it was decided during a “real war” and not this fake war we’re in now).
5. As to your argument for judicial checks and review, I probably agree. That said, just because it’s a good idea to have judicial review in these cases doesn’t mean the courts can just take for themselves jurisdiction to do so absent congressional or constitutional authority. The proper course is for civil libertarians to lobby congress to pass a bill granting judicial oversight.
2. I'm not sure how Roberts could NOT recuse himself... By definition he would have prejudged the case... Not to mention it essentially gives him two votes in the same case...
5. I wasn't suggesting a judicial establishment... I was suggesting that a constitutional amendment should be passed to create that structure... I may not have been clear...
You are confusing prejudice with having prejudged, they are not the same thing. Judges say they can’t answer questions because the case isn’t actually before them and it might prejudice them later (a tendentious excuse that until the Ginsburg nomination was rarely countenanced, but anyway). That’s not the same thing as having actually heard the actual case in a full hearing and participated in a decision.
And so you get two votes? So what? Weirder things happen in judicial process. In the Fifth Circuit, when the court hears a case en banc (the full court, instead of a panel of three), senior (retired) judges can’t participate, which makes sense. However, if the senior judge sat on the panel that decided the case, he has the option (OPTION!) of participating. In one case in 2003, that turned a 8-7 decision into an 8-8 tie. Does that sound fair or sensical? In the Ninth Circuit, they have too many judges to do a full en banc, so panel decision are sometimes reviewed by a mini-en banc of 11 judges. The 11 are randomly picked from the pool of 29, except two things: (1) Retired judges that have heard the case are added to the pool and (2) the chief judge is automatically selected (chief is not a nominated position, just a title held by rule, essentially the longest-serving judge who was under 65 when the last chief died or retired). Why does that make sense, if the goal is to represent what the whole court would do? It doesn’t make sense, that’s just how it’s done.
Neither the ABA Judicial Cannons of Ethics nor the relevant statute (28 U.S.C. Sec. 455) mention the circumstance described here. The relevant cannon simply says, "A judge shall disqualify himself or herself (when) the judge's impartiality might reasonably be questioned." But no one would question Robert’s impartiality, given that his previous involvement in the case was also in an impartial role.
The statute says the judge is disqualified if he (or someone close to him) was formerly a lawyer or material witness on the same or substantially related matter; or if the judge has prior personal knowledge of disputed evidentiary facts regarding the matter. This does not cover being a judge (knowledge attained in a judicial role is not “personal knowledge”).
I can find no example of a recusal in the circumstances you describe. Also, there is no process for challenging a Supreme Court justice’s decision to recuse or not recuse himself, so it will ultimately be up to Roberts.
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