Looking Ahead: Thoughts on Sotomayor, Rove, Detainee Trials, and the CIA

     Summer is usually slow for Constitutional Law news, but not this year.  This post contains some predictions about upcoming developments; an expression of gratitude to the commenters who contribute to the discussions on this site, particularly fellow Ohio.com bloggers Da King and The Reverend; and a request for topics that you want to read about and discuss.

     Sotomayor's confirmation hearings start Monday.  Her judicial opinions are concise to the point of being terse, her writing style is direct, and the tone of her writing is confident.  If she exhibits these same attributes in person - and as an experienced prosecutor she should - I expect that she will sail through the confirmation hearings untouched.  The principal complaint against her has been that she is racist - that she thinks that latinos are better or wiser than other ethnic groups.  I don't see any trace of that in her judicial opinions, and I would be surprised if such an attitude emerged at the hearing.  She is proud of her heritage and has been a civil rights advocate on its behalf, but so was Thurgood Marshall.  In the absence of any evidence that she holds attitudes of racial supremacy her past involvement in latino organizations will not be considered by very many people to be a legitimate reason to vote against her.  The principal case in which she participated for which she will be criticized is the Ricci case, (discussed in previous posts here and here) a decision which was recently overturned by the Supreme Court.  In my opinion she deserves criticism not so much for the result (there was binding precedent within her own circuit supporting the panel's decision, and the Supreme Court narrowly reversed by a vote of 5-4).  She does deserve criticism for the fact that she and the other two judges on the panel issued a summary per curiam opinion on a very important topic.  The constitutionality of the city's decision to yank the results of a civil service exam deserved more than two pages of analysis no matter how much it was governed by precedent.  She'll have to explain that.  We'll have plenty of opportunity to discuss that and other matters that arise during her hearing.

     The House Judiciary Committee will be reporting about the politicalization of the Justice Department under George W. Bush, in particular the reasons for the firing of 8 U.S. Attorneys in late 2006.  The process of investigating this matter raised a number of difficult and important constitutional issues including the congressonal power to subpoena witnesses and executive privilege.  Now that we are close to learning what actually happened, another set of constitutional concerns will take center stage.  The most important question involves how much discretion the President has or ought to have over the decisions and the actions of the Justice Department; does the President have the power to control the prosecutorial discretion of individual U.S. Attorneys, or must the Justice Department be afforded at least a degree of independence from the President?  We will learn a bit more about the doctrine of the separation of powers as this develops.

     The pending legislation on detainee trials deserves a post of its own, and I will provide that next week.  One quick word - liberals are criticizing President Obama' s decision that detainees who are found innocent before a military commission may nevertheless continue to be held prisoner.  Here, for example is the reaction from Jameel Jaffer, head of the A.C.L.U.'s National Security Project.  But it is important to remember that there are two kinds of hearings for the detainees.  The first type of hearing addresses the question whether or not the prisoners are in fact terrorists who have taken up arms as part of al-Qaeda's war against the United States.  That is currently being determined in habeas corpus proceedings in federal court.  The second question is whether any of these people are also guilty of war crimes or other criminal offenses.  Persons who committed crimes on U.S. soil will be tried in federal court, and those who committed war crimes in foreign countries will be tried before military commissions.  In either case, however, just because someone is found "not guilty" of committing a crime does not mean that he is therefore not a combatant who may be lawfully detained under the laws of war.  We don't have to let captured soldiers go until after the war is over.  If a federal court finds that a person is the equivalent of a soldier for al-Qaeda we don't have to release him even if he is innocent of war crimes.

     The ongoing battle concerning the lack of effective congressional oversight over the C.I.A. looks like it will continue through the summer.  The principal practical problem that the C.I.A. faces is that it has now made everybody mad.  Democrats remember the agency's inaccurate briefings about WMD's in the run-up to the invasion of Iraq.  In 2007 Republicans and Democrats like Joe Lieberman decried what they regarded as a gross understatement in the National Intelligence Estimate of the nuclear threat from Iran.  And just this year the agency managed to call the Speaker of the House a liar.  Whatever the merits of each of these matters, the agency does not, at this point, have a lot of friends on Capitol Hill.  There are a number of constitutional considerations at play in this drama, some of which will turn on the question whether the C.I.A. is a civilian or a military operation.  If it is a purely civilian agency then Congress may micromanage its affairs to its heart's content, but if it is part of the military then the President as Commander-in-Chief retains a fair amount of discretion over strategy and tactics.  The other big question that is now emerging is whether the C.I.A. has been conducting a military-type operation that even the President didn't know about.  That would not be good from either a constitutional or a practical political perspective.

     Finally, I want to express my gratitude to the people who have shared their reactions to my posts, particularly Da King and The Reverend, who have outstanding blogs here and here on Ohio.com.  Your comments and those of other readers correct my errors, sharpen the discussion, and increase the value of this forum for everyone.

     As the summer wears on I invite you all to submit constitutional topics for discussion.  I try to pay attention to what is happening in the courts and in our society, but collectively we see so much more than any one individual can.