Scotus Nightmare : Worst Cir Ct in US gets most critical civil rights case ever.

When the news of  O'Connor's retirement broke. There was a lot of talk that this was the Big One, the fight we couldn't lose, that it  was time to go to the Mattresses.  

Since then, e-mail has flooded our inboxes.  Oppo researchers are busy  peering through dusty old opinions and journals; trying to find a silver bullet to kill one the  nightmare choices. And  Pols are frantically looking for a lesser evil to get behind to prevent a greater one from reaching the bench.

For once the hype wasn't wrong, and if anything understated.  But too much focus has been on making sure the judge is right on specific issues and not enough attention has be paid to looking at the big  picture.  Overturning Roe V. Wade bad as that would be, is trivial compared to the truly scary scenarios looming just over the horizon.

This week we got a bracing reminder of that fact.  

Possibly the single most important case on government power ever, is about to be placed before the most radically Republican court in the nation, the 4th Circuit Ct of Appeals. If you aren't scared yet you should be:

The Case is Rumsfeld v Padilla

the facts of the case are utterly chilling

Respondent Padilla, a United States citizen, was brought to New York for detention in federal criminal custody after federal agents apprehended him while executing a material witness warrant ...While his motion to vacate the warrant was pending, the President issued an order to Secretary of Defense Rumsfeld designating Padilla an "enemy combatant" and directing that he be detained in military custody. Padilla was later moved to a Navy brig in Charleston, S. C., where he has been held ever since

Allow me to translate From legalease:

An American Citizen, was picked up (not arrested, because he's never been charged with a crime) on American Soil, By federal law enforcement agents, as a potential witness to a crime (the September 11 attacks).  His lawyer called BS (since it was a wild abuse of a material witness warrant), and Padilla was about to regain his freedom .

President Bush then signed a single piece of paper, and this American citizen, without a ever being charged with a crime, without ever seeing a judge, was whisked away to a military brig where he has been held incommunicado unable to talk to family, friends, or even his lawyer, ever since.  Worse, the government is claiming, unreviewable unilateral authority to hold him there indefinitely.

  The Government's sophisticated legal argument to justify this action is "trust us, We'll always get the right guy and we'll never misuse this power; but, uhh you don't get to check up on us either. Ya see,  there's a sort of war  being fought  against an undefined enemy, that could last generations, and we can't  be questioned while its going on."

Now I'll give them credit for Chutzpah and inventing a novel legal theory;  But that's about it.   Maybe its just me, but I'm not real comfortable knowing the only check against my government's abuse of power is the Honor System.   Call me a cynic but....

"But this will never Fly!" I hear you protest being a rational person, and especially having read the 5-6th Amendments ; particularly the bits which read:

Amendment V

"No Person Shall be... deprived of life, liberty, or property, without due process of law;

and one of my  personal top ten:

Amendment VI

 In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense

And that would be undoubtedly true in a rational world,  but unfortunately for us in the Here and Now,  it ain't necessarily so.

Ya see,  when this case last came up to the SCOTUS they punked out and ducked the issue by finding a procedural error.  They ruled the case was improperly filed in NY and had to be Re-filed in South Carolina.(where the brig is).

And THAT dear readers placed in right Smack dab under the jurisdiction of The single most  Wingnutty, Whacky, Dangerous, Conservative, Activist Court in the nation.   And we gentle citizens are in BIG trouble

How bad could the 4th Circuit be?  Well let's look at a collection of recent hits:

1)In a very similar case Hamdi v. Rumsfeld  they ruled that a US citizen arrested in Afghanistan can be held indefinitely as an unlawful combatant in a military brig without any right to judicial review.

2) US v. Massoui:  Which held that although the 6th Amendment   seems to grant the right "to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor," It didn't really mean it.  What it apparently meant to say was that the accused was allowed to read summaries of  transcripts of interrogations of his preferred witness, conducted by unknown persons, under unknown (possibly torturous) conditions, and edited  by the same people accusing him of a crime.

This, by the 4th circuit is due process.

And lets not forget their Greatest Hit  ; When they Overturned the Miranda decision, in 1999!  Yes, THAT Miranda. You know, the decision that makes the cops say "you have the right to remain silent....", the one guarding against cops beating a confession out of you?  

I so wish I was Kidding:

In a 2-1 ruling, a three-judge panel of the 4th U.S. Circuit Court of Appeals said a 1968 federal law on voluntary confessions takes precedence over the 1966 Miranda ruling in federal cases. prosecutors in five states have been told they can bypass the high court's landmark Miranda decision against self-incrimination and use a confession from a suspect who opens his mouth before he has been read his rights.

And you Want to talk judicial activism? The Judges raised the issue on their own, appointed a 3rd lawyer to argues it after the federal government refused.  They then based thier decision on a law both parties to the case agreed was unconstitutional.

And this dear reader, if you made it this far, is where we come back to the Supreme Court, and it overwhelming importance in our lives.

It's no secret to legal professionals,  and most interested observers, that certain Circuit Courts have rather pronounced ideological bents.  The 4th is clearly the most egregious, but its not the only one (and conservatives are equally fervent in their condemnations of the 9th, which is their poster child for the evil Liberal Judiciary).  

Up until now however, a relatively centrist (best we could hope for when 4 of the five previous presidents have been Republican) Supreme Court, has been the calming anchor of the law.  No matter how outrageous the pronouncement of some activist neo-con or three on a lower circuit was, we always believed the SCOTUS was there to serve as a backstop, to prevent them from going too far off the reservation.  It didn't always work, (especially as the SCOTUS caseload has drastically declined in the last few years) but by and large they got the really important stuff right.  

Not always the way we'd want it to be sure, but at least their decisions were intellectually defensible (with the glaring exception of Bush v. Gore of course) and predictable to most legal observers.  And since the rabid Wingnuts on the 4th and elsewhere knew the Supreme Court was looking over their collective shoulders; they had a tendency to behave better, since being reversed always makes judge look bad and hurts their chances of getting a call-up to the Show one day.  So by and large they toed the line and tried not to stray too far afeild.

In about 5 hours we will learn whether that will remain true any longer.  The man most of us wouldn't trust to nominate the milk monitor in a 2nd grade classroom gets his shot at what has become the single most important chair in Washington.   Depending on what happens tonight, and how we respond to it, our world could be forever changed. With the wrong person on the Big Bench, it could become open season in the circuits.

I don't know about you, but I don't want to live in an America where the president has the power to disappear anyone he wants.  I don't want to live in a country where citizens can be held forever and never charged with a crime.  And I certainly don't want to live in a world where my only protection against abuses by my government is their word that they'll behave themselves.

Right now the only thing standing between us and that world is a 5-4 majority of a nine member court.  And starting tonight, the process of changing that majority begins.  This is NOT a fight we can afford to lose.