Yesterday the U.S. Court of Appeals for the Fourth Circuit (covering Maryland, Virginia, West Virginia, North Carolina, and South Carolina) issued a complicated (216-page) and fractured (5-4, with a plethora of conurrences and dissents) decision that turned on one judge joining four colleagues on one issue and four other colleagues on another. Essentially, the Al-Marri case says that the president has the power to order the indefinite military detentions of civilians captured in the U.S., but that these “enemy combatants” must be given more of an opportunity to challenge their detention in federal court than has been given.
This is a big mess of a decision — right or wrong, no clear guidelines emerge – the substance of which I won’t get into and, in any event, it’s on the fast track to the Supreme Court. What I do want to comment on, however, is the larger significance of the 5-4 splits in this en banc (meaning all the court’s judges review the earlier decision of a three-judge panel) case.
Regardless of the merits of this case — with dueling 5-4 votes on the two main issues it’s obviously a close (and unprecedented) call — this case highlights yet again the disastrous consequences of our broken judicial confirmation process. The court that decided this important case has 15 authorized judgeships, yet only nine judges participated. One judge recused himself for an unspecified reason, one was confirmed too recently, and four crucial slots are vacant. While both parties have done their fair share to poison the confirmation well, Democrats are clearly the ones to blame for the current impasse over judges. President Bush — who in one of his first acts appointed a previously lapsed Clinton nominee, Roger Gregory, to this same court – has named nominees for all four vacancies, but the Senate has refused to act on them. The longest-suffering, District Judge Robert Conrad of North Carolina, will tomorrow have been awaiting an entire year and has not even gotten a Judiciary Committee hearing.
The Court of Appeals for the District of Columbia Circuit has been similarly hamstrung, its ten judges increasingly splitting 5-5 on the important issues of the day while Peter Keisler, the person nominated to the seat John Roberts vacated when he became Chief Justicehas been awaiting an up-or-down vote for over two years. (Keisler is the most qualified lower-court nominee since Miguel Estrada, who withdrew his name from consideration after being filibustered ostensibly because Democrats were wary of confirming a conservative Hispanic who would have instantly become a contender for the next Supreme Court vacancy. Keisler is also on record as having opposed the controversial ideological vetting of new Justice Department hires.)
By their (in)action, first as minority filibusterers and now as majority obstructers, Senate Democrats hamper the judicial process and invite messy and inconclusive decisions like Al-Marri.
[Cross-posted at Cato's blog.]
Wednesday, July 16, 2008
Monday, July 7, 2008
American Patriotism = Choosing Liberty
I’ve always thought of long-time Cato ally Tim Sandefur as one of the most thoughtful libertarians in the blogosphere. This holiday weekend he did not disappoint, offering a stinging rebuke to Matt Yglesias’s blather about how America is “awesome” but would have been “even awesomer had English and American political leaders … been farsighted enough to find compromises that would have held the empire together.”
Sandefur correctly points out that the British, while now our closest friends (along with Canada, the part of British North America that did not join in revolt), in the 1770s left the colonists with no choice:
Abject submission is what you get when you try to “compromise” with those who would destroy your liberty and reduce you under absolute despotism.
He then goes on to excoriate Yglesias for elsewhere saying of the difference between liberal and conservative patriotism that “liberals do a better job of recognizing that much as we may love America there’s something arbitrary about it — we’re just so happen to be Americans whereas other people are Canadians or Mexicans or French or Russian or what have you.” Sandefur points out that these other nationalities “are based on ethnicity and chance, while American nationality is based on choice and the assent to certain basic principles that make up our nation.”
That’s exactly right: America is anything but ethnic (or other) happenstance, but instead stands for government by the principled consent of the governed, and the Founding generation’s choice of liberty over continued subjugation. Consequently, America’s patriotism (qua nationalism) is civic rather than ethnic:
What July 4th is about is to remind us that all those who stand up for freedom and refuse to “compromise” their rights to life, liberty, and the pursuit of happiness, are brothers and sisters and at heart Americans; that all who today try to move their countries toward a fuller recognition and implementation of these principles are working hand in hand with our founders; that American nationhood is the first ever founded on anything but an arbitrary ethnic or historical basis, but on the basis of certain shared principles, principles that can be grasped by “a candid world,” and that give hope to all men for all future time.
As they say, read the whole thing.
You could argue, of course, that other new world (or immigrant) countries like Canada and Australia (or Argentina) are also not based on ethnicity, but there, quite obviously, there is no “national idea” — focusing on liberty or otherwise. Canada is constantly having national conversations on “what it means to be Canadian,” which typically fails to produce any answers beyond “well, we’re not Americans” (at least for those outside of Quebec, which has never been fully assimilated into the Canadian “nation”). And of course, many other countries that are or were based on an idea (Communism, etc.) lack the consent of the governed. Having been born in then-Soviet Russia and raised in Canada, I have all too much experience with countries lacking either a civic basis or popular legitimacy.
For what I think of the American Idea, scroll/click through this.
[Cross-posted on Cato's blog.]
Sandefur correctly points out that the British, while now our closest friends (along with Canada, the part of British North America that did not join in revolt), in the 1770s left the colonists with no choice:
Abject submission is what you get when you try to “compromise” with those who would destroy your liberty and reduce you under absolute despotism.
He then goes on to excoriate Yglesias for elsewhere saying of the difference between liberal and conservative patriotism that “liberals do a better job of recognizing that much as we may love America there’s something arbitrary about it — we’re just so happen to be Americans whereas other people are Canadians or Mexicans or French or Russian or what have you.” Sandefur points out that these other nationalities “are based on ethnicity and chance, while American nationality is based on choice and the assent to certain basic principles that make up our nation.”
That’s exactly right: America is anything but ethnic (or other) happenstance, but instead stands for government by the principled consent of the governed, and the Founding generation’s choice of liberty over continued subjugation. Consequently, America’s patriotism (qua nationalism) is civic rather than ethnic:
What July 4th is about is to remind us that all those who stand up for freedom and refuse to “compromise” their rights to life, liberty, and the pursuit of happiness, are brothers and sisters and at heart Americans; that all who today try to move their countries toward a fuller recognition and implementation of these principles are working hand in hand with our founders; that American nationhood is the first ever founded on anything but an arbitrary ethnic or historical basis, but on the basis of certain shared principles, principles that can be grasped by “a candid world,” and that give hope to all men for all future time.
As they say, read the whole thing.
You could argue, of course, that other new world (or immigrant) countries like Canada and Australia (or Argentina) are also not based on ethnicity, but there, quite obviously, there is no “national idea” — focusing on liberty or otherwise. Canada is constantly having national conversations on “what it means to be Canadian,” which typically fails to produce any answers beyond “well, we’re not Americans” (at least for those outside of Quebec, which has never been fully assimilated into the Canadian “nation”). And of course, many other countries that are or were based on an idea (Communism, etc.) lack the consent of the governed. Having been born in then-Soviet Russia and raised in Canada, I have all too much experience with countries lacking either a civic basis or popular legitimacy.
For what I think of the American Idea, scroll/click through this.
[Cross-posted on Cato's blog.]
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