Bush Didn't Want a Scalia

Many conservatives are up in arms over the Miers nomination because they consider it a betrayal, or at least a failure to follow through on a promise to nominate someone in the mold of Scalia. I don't have any special way of knowing what the President was really looking for when he chose Chief Justice Robert and now Harriett Miers, but I have some suspicions. Many have pointed to his personal knowledge of candidates as a common link, since Bush has known Roberts since he was first (unsuccessfully) nominated to the D.C. Circuit by Bush's father and working in the Solicitor General's office. And his long connection with Miers has been much lauded and criticized.

Another commonality, and I suspect an equally important one, is the likelihood that both Roberts and Miers favor a strong deference to the executive branch in matters of national security. In cases like Hamdan v. Rumsfeld, Roberts has given sufficient signs to the administration that he is not disposed to limiting the administration's efforts in the war on terror. Assuredly, Miers' work in the White House Counsel's office has given the President similar comfort.

It would not be hard to believe that the President feels the war on terror (including, in his calculus, Iraq) is supremely important, perhaps even the "issue of our times," and thus should drive these nominations. It certainly seemed like much of the 2004 campaign was driven by the notion that Bush was the better choice for leading the war effort. If so, then like FDR and his pro-New Deal justices, Bush may be pushing nominations that focus on the issues important to him, with less regard for their overall philosophies or their potential effect on as yet unseen issues (like the incorporation and civil liberties revolutions of the post-WWII era).

In this light, Bush has a different set of priorities than quite a few of his vocal supporters now making waves at places like Confirm Them. For many of them, judicial nominations are not about the war on terror, nor taxes, nor corporate regulations. They are about abortion. Surely they would like a judge who supports the President's other priorities, but most of all they want one who will vote to overturn Roe. To them, that's what "like Scalia" really means.

But I will suggest that perhaps Bush is no longer so enamored with Scalia. I don't know why I forgot this until now, but I happened to be in the courtroom last June when the Supreme Court handed down Hamdi. v. Rumsfeld. This was the case of the U.S. citizen alleged to have been caught fighting for the Taliban in Afghanistan, and held without trial at a naval brig in Charleston, S.C. The court held that although Congress authorized the detention, Hamdi's citizenship meant he was entitled to a meaningful factual review before a neutral decisionmaker. Last October, Hamdi was freed and returned to Saudi Arabia.

Justice O'Connor wrote the majority decision and was joined by the Chief Justice, Justice Kennedy, and Justice Breyer. Justices Souter and Ginsburg concluded the detention was unauthorized, but voted with the plurality to remand for a factual inquiry.

Justice Thomas filed a true dissent, arguing that deference to the government's war powers should prevent the court from second-guessing the administration's decisions.

What is curious, however, is the opinion written by Justice Scalia. It is labelled a dissent, and thus the case if often cited as a 6-3 decision with Scalia and Thomas dissenting. Actually reading the decision, which was joined by Justice Stevens, shows that Scalia and Thomas could not be further apart on this. Scalia actually dissented because he did not think the plurality opinion went far enough in its criticism of the administration position:

The Founders well understood the difficult tradeoff between safety and freedom. “Safety from external danger,” Hamilton declared,

“is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war; the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty, to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they, at length, become willing to run the risk of being less free.” The Federalist No. 8, p. 33.

The Founders warned us about the risk, and equipped us with a Constitution designed to deal with it.

Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis–that, at the extremes of military exigency, inter arma silent leges. Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it. Because the Court has proceeded to meet the current emergency in a manner the Constitution does not envision, I respectfully dissent.

When the decision was announced in the court that day, several of the justice spoke from the bench. They did not read their opinions, but rather gave prepared summaries. Justice Scalia was quite passionate and visibly outraged by the administration's attempt to hold a U.S. citizen in the United States withou trial. He argued that the only way the Constitution allowed for this was by suspension of the writ of habeas corpus, an action we can be sure President Bush is not interested in taking.

This may not have even crossed the mind of the President or his nomination advisers. But it may have, and it stands as pretty good evidence of the unpredictabilities of nominating a truly independent, intellectual conservative who aims to be more committed to a particular judicial philosophy than to any policy-driven outcome. I would be surprised if Bush did not take note of this, and perhaps adjust his committment to nominating "another Scalia."