Commentary Magazine


Re: Think Again

I suggested that Democrats who now control both elected branches might want to reconsider the merits of judicial restraint. For the president this is especially true in an area of jurisprudence which has not been the focus of much pre-nomination chatter: national security. Now that he is in the White House Obama may not want to be micromanaged by the Supreme Court. In a thoughtful analysis, Stuart Taylor observes:

Meanwhile, in moving from campaign mode to the presidency, Obama has had many reasons to worry about such judicial second-guessing. One federal District judge has rejected the administration’s claim that it can detain suspected jihadist fighters captured outside Afghanistan at Bagram Air Base without judicial oversight. A federal Appeals Court has rejected the White House’s efforts to use the “state secrets” doctrine to block lawsuits by former detainees who claim they were tortured.

Still other lawsuits demand the release of any detainees in the war on terrorism who cannot be convicted of crimes, and publication of classified CIA documents that Obama would rather keep under wraps. A reported, perhaps tentative plan by administration officials to use “military commissions” instead of ordinary courts to try some of the detainees for war crimes would surely bring more legal attacks. And for the foreseeable future, squadrons of liberal lawyers will be suing a range of companies for cooperating with the president on matters such as wiretaps, “renditions” of suspected terrorists to other countries, and other actions deemed by Obama to be vital to national security.

The more the courts smile on such lawsuits, the harder it will be for the president to protect the country. Indeed, some human-rights and civil-liberties activists have done their best to hamstring virtually all of the surveillance, search-and-seizure, detention, and related powers on which the government depends to find and disable suspected terrorists.

It is unclear how high this concern will rank or whether there even is a “liberal” justice who will be inclined to follow Obama’s empathy edict while showing deference to the executive branch on matters of national security. But now that he is in the White House and must navigate through the thicket of ACLU lawsuits, keep his netroot base at bay, and maintain the flexibility to protect the country, he may want to think twice about nominees inclined to micromanage national defense policy.

Judicial restraint has its benefits — for the country and for a commander-in-chief trying to balance a host of competing interests. From Obama’s perspective, he has reasons to want to preserve his options on everything from surveillance to detainee treatment — without the complicating factor of justices who lack expertise to run the war on terror from the bench. If he intends to keep those options open he’ll have every reason to find a justice inclined to let the executive branch run the national security show.