Turn back the clock to election day and consider where the president wanted to be by now. By this point, he was expecting to sign a bill transforming Social Security into the keystone of an “ownership society.” He would be awaiting the triumphant election returns approving an Iraqi constitution, confirming the legitimacy of his break with the United Nations and the old world order. And his allies in the Senate would have battered down the filibuster rule, requiring 60 senators for judicial confirmations. The president's claims of a powerful mandate from the 2004 election would have been redeemed in the hard currency of political success.
As we go to press, we don't know the name of President Bush's Supreme Court nominee or nominees. But it is clear that he will eventually get two, and maybe more -- enough to lead a radical transformation of constitutional law. The challenge is to keep this point at the center of the debate and to avoid diverting attention with personal attacks or strategic maneuvering.
The president has repeatedly promised us justices like Clarence Thomas or Antonin Scalia, and I propose to take him at his word. If we simply take the trouble to read their opinions, it becomes evident that a Court dominated by Thomases and Scalias would launch a constitutional revolution on a scale unknown since the New Deal.
As the Senate filibuster debate reaches its climax, it will become increasingly clear that the central player is neither Senator Bill Frist nor Senator Harry Reid but, rather, Vice President Dick Cheney. As president of the U.S. Senate, he is the guardian of its rules. Yet only if he betrays his trust to the Senate can Frist's efforts to destroy the filibuster succeed.
This letter is in response to two articles [September 29, & October 6, 2004] that Bruce Ackerman published on The American Prospect Online. He argued that the oath given to the judges who will handle the appeals, if any, from the war-crimes tribunals [the military calls them "military commissions"] is illegal because it does not mention the Constitution. One of the articles was subtitled "Forget the Constitution," and Professor Ackerman wrote that the oath that was administered is "the capstone of a ramshackle edifice."
Last week, I remarked on the special oath sworn by the civilians
selected by Defense Secretary Donald Rumsfeld to review the extraordinary military tribunals he has convened at Guantanamo Bay. The remarkable thing about it was that members of this board failed to swear fealty to the Constitution.