Eminent Domain

Robert Alt has an article about the recent Hamdan decision and the reaction from folks on the Left. Here's how it starts...

On the last day of the Supreme Court's term, Tom Goldstein, the prominent D.C. appellate lawyer who served as second chair representing Al Gore in Bush v. Gore, participated in a panel hosted by the liberal American Constitution Society at the National Press Club. In the middle of the symposium, Goldstein received word concerning the result of one of the final cases of the term, and raised his hands as if to signal a touchdown. When the moderator asked whom the "touchdown" was for, Goldstein declared: "The Good Guys." The case was Hamdan v. Rumsfeld, and the victorious party was Osama bin Laden'’s purported personal driver and bodyguard, Salim Ahmed Hamdan. Goldstein was not alone: From legal academia, to Capitol Hill, to the mainstream media, to the blogosphere, liberals have expressed undue exuberance concerning the outcome of Hamdan, and thereby reaffirmed why many Americans are reluctant to trust liberals on questions of national security.

I know that Goldstein represented Hamdan, but I didn't know that he did this little victory celebration. It seems kind of lame if you ask me, but I've never won a case in front of the Supreme Court so what do I know...

Hamdan was an important decision, but I agree with Alt that it was not "the most important decision on presidential power and the rule of law ever." It was the most headline grabbing decision of an otherwise dull term at the Court. Sure, cases were decided, stuff happened, Scalia dissented, but nothing major really changed. This is echoed by Prof. Orin Kerr...

There were no radical turns and no major shake-ups. The big news of the Term was who left and who arrived, and perhaps more importantly, who didn't arrive. But if you focus on decisions and not personnel, it was an unusually quiet Term.

Just business as usual on One First Street.

Alt continues, quoting prominent Lefties including my favorite stereotypical San Francisco liberal, Nancy Pelosi...

"This is a triumph for the rule of law. The rights of due process are among our most cherished liberties, and today's decision is a rebuke of the Bush Administration's detainee policies and a reminder of our responsibility to protect both the American people and our Constitutional rights."

I guess she read a different Hamdan than I did, because that's certainly not how I felt.

Since I didn't have a real Hamdan post, I'm going to include the following in this post, since I think it applies. One of my fellow law students reminded me of these parts of Justice Thomas' dissent...

Today, a plurality of this Court would hold that conspiracy to massacre innocent civilians does not violate the laws of war. This determination is unsustainable. The judgment of the political branches that Hamdan, and others like him, must be held accountable before military commissions for their involvement with and membership in an unlawful organization dedicated to inflicting massive civilian casualties is supported by virtually every relevant authority, including all of the authorities invoked by the plurality today. It is also supported by the nature of the present conflict. We are not engaged in a traditional battle with a nation-state, but with a worldwide, hydra-headed enemy, who lurks in the shadows conspirint to reproduce the atrocities of [9/11], and who has boasted of sending suicide bombers into civilian gatherings, has proudly distributed videotapes of beheadings of civilian workers, and has tortured and dismemberd captured American soldiers. But according to the plurality, when our Armed Forces capture those who are plotting terrorist atrocities... even if their plots are advanced to very brink of fulfillment-our military cannot charge those criminals with any offense against the laws of war. Instead, our troops must catch the terrorists 'redhanded,'...in the midst of the ATTACK ITSELF, in order to bring them to justice. Not only is this conclusion fundamentally inconsistent with the cardinal principal of the law of war, namely protecting non-combatants, but it would sorely hamper the President's ability to confront and defeat a new and deadly enemy....Those Justices who today disregard the commander-in-chief's wartime decisions, only 10 days ago deferred to the judgment of the Corps of Engineers with regard to a matter much more within the competence of lawyers, upholding that agency's wildly implausible conclusion that a storm drain is a tributary of the waters of the United States... The plurality's willingness to second-guess the determination of the political branches that these conspirators must be brought to justice is both unprecedented and dangerous.

I love it when Thomas calls the liberals on stuff like that. I think he did it in Raich too. Scalia gets all the press for being the Justice who is spitting fire at the others, but Thomas gets his shots in here and there.