Rule of Law Issues Explored --

By Carol Gee

Supreme Court Justice David Souter plans to retire after his successor is chosen and confirmed. President Obama has committed to have the new justice in place when the Supreme Court reconvenes. The nomination process will consume an enormous amount of time, media attention and legislative energy between now and October.

[Image: Wordle.net]

Early signs of back to Bush -- By the time the new court convenes, the Obama Justice Department should have its act together. Many of us have been very concerned as we get reports that the new government's lawyers have not stepped aside from many of the questionable Bush Justice Department court arguments.

Detainees at Gitmo -- Davis Cynamon, an attorney for 4 Gitmo detainees has been fighting for their due process rights, accuses the DoJ of "abandonment of the rule of law," according to TPMMuckraker's post, "Not Just State Secrets: Obama Continuing Bush's Stonewalling On Gitmo Cases, Lawyer Claims," (4/10/09). To quote:

"The Department of Justice has been doing everything in its power to delay and obstruct these cases," said Cynamon, whose clients were picked up in the Afghanistan-Pakistan region in the period after the 2001 U.S invasion of Afghanistan. "They're not doing anything to move the case along, and doing everything to avoid it."

Asked whether he had observed a shift of any kind in the government's approach since the Obama administration came into office, Cynamon flatly replied: "None whatsoever."

This kind of leftover Bush court stance has been difficult for many of us to understand, given the high quality of President Obama's nominees for his key legal positions.

Nominations blocked by Senate -- The nominations of Dawn Johnsen to head the Justice Department’s Office of Legal Counsel and Harold Hongju Koh to serve as Legal Advisor to the State Department are being held up by conservatives in the Senate, says the Firedoglake post, "Legal wrangling: Why the fuss about legal nominees?" (4/9/09). To quote (emphasis mine):

The nominees themselves are so well-qualified, so clearly within the progressive political mainstream, and the attacks against them so frenzied, one is left scratching one’s head and wondering: what on earth is going on here?

. . . [Senator John] Cornyn castigates Johnsen for her “prolific and often strident criticism of the legal underpinnings of the previous administration's counterterror policies.” . . . Johnsen’s criticisms of the legal underpinnings of Bush’s counterrorism policies have been right on the mark. The Bush administration itself was forced to renounce some of the OLC memos Johnsen criticized because they were so profoundly flawed. And let’s not forget that the Supreme Court has had four opportunities to review Bush counterterrorism policies and has struck the policies down each time. That’s because Bush had a tendency to ignore the law. John Cornyn doesn’t care; Dawn Johnsen does.

. . . The bottom line is that the stakes here are thus much higher than whether Obama gets his first choice to fill these slots. And they go beyond how the rule of law will apply at the Justice and State Departments.

Most observers agree: the attacks on Johnsen and Koh are spring training for the coming attacks against Supreme Court and other judicial nominees (Koh himself may be one) who display a similar commitment to the rule of law. That’s why it’s so important to expose what’s behind the current attacks, and defeat them.

We can predict that Republican right-wingers and the like will stage protests in all forms against whomever the President nominates to the Supreme Court. They will get media attention, they will pressure senators, and they will be extremely visible. Those of us on the other side are demanding Constitutional stances from the new administration. We must also support for our opponents' right to speak freely, even if outrageously.

Citizens must act to make our wishes known to our President and to our elected representatives. These fundamentals are beautifully explained in Firedoglake's post, "Peaceable Assembly; Petitioning to Redress Grievances (4/8/09). To quote:

The first ten amendments to the Constitution are called the Bill of Rights and they became law in 1791. Among the first of these are the rights peacefully to assemble, to exercise free speech, and to petition the government to redress grievances. They are first because they are fundamental to the preservation of representative government.

. . . First Amendment rights have a kind of "Use 'em or Lose 'em" quality. We exercise them to protect us against their silent or notorious abridgment. We assert them to remind public officials of their public promises. Most of all, we use them to make our views known and to encourage others to adopt them, Congress and the President included. We do not use them in order to give an unruly government an excuse to abridge them further.

The rule of law was explored in today's post. President Obama will no doubt appoint a person to the highest court in the land of whom we can be proud. And it will inevitable spark a big fight. Between now and then it is my expectation that Attorney General Holder and his stable of lawyers will have gotten a handle on how they can roll back the most dangerous and destructive of the Bush legal positions. If they do not, the Supreme Court will be forced to rule against them over and over until they finally "get it."

(Cross-posted at South by Southwest.)