The Wrong Litmus Test

The battles over George W. Bush's Supreme Court nominees are about to be waged on the wrong terrain -- on the bloody fields of America's culture wars. Sandra Day O'Connor was the swing vote on many of the nation's most divisive social issues, and activists on both right and left are mobilized for the fight to replace her based on the nominees' positions on abortion rights, gay rights, and the separation of church and state. But the Court decisions most likely to change the face of America in coming years won't be about sex or religion. They'll concern the rights of individuals against a steadily growing anti-terrorism security state.

The London bombings should remind us of the high likelihood -- face it, inevitability -- of another terrorist attack here. When it occurs, Americans will be tempted to jettison some civil liberties in order to allow larger roles for the FBI, CIA, and the military in preventing further attacks. Recall that after September 11, the USA PATRIOT Act sailed through Congress with barely a whimper of protest, although it dramatically expanded government's authority to snoop on Americans. And President George W. Bush, as commander in chief, initially was given wide latitude to suspend rights and invoke “executive privilege” to shield executive action from public scrutiny.

Few occasions are more dangerous to a democracy than when a majority fears hidden enemies. Citizens are willing to sacrifice rights in the belief that, because they individually are innocent of any wrongdoing, their own personal freedoms will not be affected. Yet any loss of civil liberty subjects the innocent as well as the guilty to random intrusions on privacy and peace of mind, as well as the possibility of retaliation for speaking one's mind or voting one's conscience. Moreover, liberty's loss is rarely security's gain.

Nonetheless, when the public's desire for security trumps its love of liberty, the Supreme Court is the last line of defense. Lacking sword or purse, it remains the one institution of government capable of rising above popular passion and reminding society of the promises it has made to itself. While the Court often defers to presidents during wartime (it shamefully upheld Woodrow Wilson's Espionage Act, which made it a crime to say anything that interfered with military success during World War I, and went along with FDR's internment of Japanese Americans during World War II), it is still the conscience of the nation. The current Court has insisted, for example, that Americans deemed “enemy combatants” get a chance to contest the government's charges, and that lower courts be able to consider whether a foreign national is illegally jailed at Guantanamo Bay.

It can be expected that the next Supreme Court will have to make even harder decisions in the wake of the next terrorist acts within the United States. So the question of how far a Bush nominee is likely to go in protecting civil liberties may be the single most important question facing the Senate as it considers whether to confirm. But, so far at least, there seems little chance that this question will be given the centrality it deserves. The culture wars' large and well-financed adversaries would rather focus on the nominees' views about sex and religion.

Case in point: Attorney General Alberto Gonzales. Right-wingers oppose his nomination because of an opinion he authored while a justice on the Texas Supreme Court upholding the right of a teenager to have an abortion without notifying her parents. In response, Democrats and pro-choicers regard Gonzales in a more favorable light. He is deemed a “moderate” in the culture wars and therefore, presumably, acceptable.

But when it comes to civil liberties in the permanent war on terrorism, Gonzales is no moderate. As White House counsel, he urged Bush to opt out of the Geneva Conventions for the treatment of prisoners of war, and he and his underlings came up with the term “enemy combatant” as a way to dodge the rights of citizens accused of criminal acts. He was intimately involved in drafting the PATRIOT Act, and was almost certainly involved in coming up with guidelines on the use of torture. During his nomination hearings for attorney general, Gonzales expressed no regret for the role he played in expanding the president's war powers and, in the process, compromising Americans' civil liberties.

When the next act of terrorism occurs on American soil, the nation will need a Supreme Court that understands its vital role in protecting the Bill of Rights from an inflamed electoral majority. The culture wars are important, of course, but the ongoing war against terrorism will pose a greater test of our character and values. At the least, Bush nominees to the Court should be able to pass it.

Robert B. Reich is co-founder of The American Prospect.

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