Civil Liberties

Obama's Next Supreme Court Nominee Will Be Crucial to Saving American Democracy

Our government has abused its power too long. We must make sure the next Supreme Court justice does not support indefinite detention without trial.

When Supreme Court Justice John Paul Stevens retires, who will President Obama nominate to replace him? This question is being seriously asked as Justice Stevens, now 90 years old, is considering retiring from the Supreme Court before the 2012 election. After the retirement of Justice Souter and appointment of Justice Sotomayor, President Obama already has a "short list" for nominees to replace Justice Stevens. Those who believed electing President Obama meant getting liberal justice's may be sorely disappointed a second time.

Justice Sotomayor, while eminently qualified, is not progressive or liberal in her rulings. She is, and always was, a centrist. While she was appointed to the U.S. Appeals Court under President Clinton's administration, she was nominated for U.S. District Court under President George H.W. Bush's administration. Her vote is a "swing vote" on the Supreme Court, nothing more, nothing less, which makes the second appointment by President Obama so crucial. This appointment will seal the fate of the Supreme Court for decades. It is for this reason that those on the "short list" must be scrutinized closely.

President Obama has already stated that he will continue the practice of indefinite detention and will rely on the Bush administration's arguments as justification for those detainees already in our custody. But, it has been reported that Sen. Lindsey Graham (R-South Carolina) is engaging in talks with the Obama administration about legislation allowing the indefinite detention of those who are to become FUTURE detainees. That talks of trying to codify into American law the "legal" indefinite detention of anyone are even occurring should send shivers up the spine of every American.

The Supreme Court, prior to Justice Souter's retirement and Sonya Sotomayor's appointment, ruled in at least three separate cases that detainees had the right to challenge their detention in court. Each of these rebukes by the Supreme Court to the Bush administration assertions of executive authority was a close vote, usually 5-4 in its dissent. But, what if President Obama's next nominee would tip that vote to 5-4 in favor? That is exactly what may happen, that the Supreme Court might rule 5-4 that a law stating that our government can hold someone indefinitely, without charge or trial, is constitutional. It could very well happen if that nominee is Elena Kagan, the U.S. solicitor general.

Elena Kagan is already on President Obama's "short list" for nomination to the Supreme Court. During her confirmation to the post of U.S. solicitor general, she stated that "someone suspected of helping finance al-Qaeda should be subject to battlefield law -- indefinite detention without a trial -- even if he were captured in a place like the Philippines rather than in a physical battle zone." With her appointment to the Supreme Court, Elena Kagan could make the indefinite detention of people, with no charges, no trial, into accepted American law.

This is, of course, all premised on the fact that President Obama would actually detain a person indefinitely without charge or trial. That is something that he has already stated he will do. It is premised on the fact that his administration would consider legislation codifying this practice into law. That is something that that his administration has already stated he may seek in the future for future detainees. It is premised on the fact that this legislation would pass Congress, which, given Republican support for the idea, is almost assured to pass, just like the Patriot Act. And, it is premised on the fact that this legislation would be challenged, ultimately to be decided years from now by the Supreme Court. That is something that you can count upon happening. The only question is, when this challenge comes before the Supreme Court, will the court rule in favor of it or not?

We are past worrying if our government would use this law against American citizens or not, because it will. The government imprisoned Salim Ahmed Hamdan, a U.S. citizen, for three years without charge or trial. The government released him from prison only after the Supreme Court held that, as an American citizen, his rights were being violated by our government. He was only released after the ruling because he agreed to give up his citizenship and be deported from the country. This is a power that our government will use against its own citizens once it is given the chance. If you don't believe that, you didn't follow the use of Patriot Act terrorism provisions against American citizens after it passed Congress.

In September 2009, Sen. Russ Feingold showed during Congressional hearings how the Department of Justice made 763 requests for "sneak and peek" searches in 2008, a provision of the Patriot Act, and how only three of those requests were related to terrorism investigations. Sixty-five percent of the "sneak and peek" warrants were used in drug investigations. In fact, six months after passage of the Patriot Act, the Department of Justice was giving law enforcement instructions on how to use the new provision for domestic purposes that had nothing to do with terrorism investigations.

We must get out in front of this second Supreme Court nomination. We must make sure that the next appointment to the Supreme Court isn't going to support a law making it legal for our government to toss someone -- anyone -- into prison without charge or trial. Our government has abused its power too long on too many American citizens. We cannot take the chance that the deck is about to be stacked against us again.