Sales: Sotomayor and National Security Questions

Writing in the Richmond Times-Dispatch, Professor Nathan Sales warns that the Senate should make certain Supreme Court nominee Sonia Sotomayor will not get in the way of lawful efforts to ensure the nation's safety.

Sales points out that while the realities of governance have caused President Obama to modify his stance on key issues of national security, the courts are not following his lead. "Unelected and unaccountable judges are playing an increasingly active role in deciding what steps may be taken to protect this nation from its enemies," says Sales.

The Senate should take a hard look at Sotomayor's record to make certain the nominee has an "appropriately modest understanding of the judicial role," which Sales says is to enforce clear constitutional commands and, where the Constitution is silent, "to stay out of the political branches' way."

...And National Security Questions, Richmond Times-Dispatch, May 27, 2009. By Nathan Sales.

"Last summer, in the Boumediene case, the Supreme Court held that foreign terrorism suspects at Guantanamo Bay are entitled to sue their captors -- even though Congress had enacted legislation specifically forbidding courts from hearing these cases.

"The court didn't just snub Congress, it also sidestepped its own precedents. In 1950, the court ruled that Nazi war criminals detained outside the U.S. had no right to sue. Back then, it understood that lawsuits would divert the government's 'efforts and attention from the military offensive abroad to the legal defensive at home,' which would be 'highly comforting to enemies of the United States.'

"Nor is the problem limited to Gitmo. In April, a federal judge in Washington, D.C., held that some detainees at Bagram Air Base in Afghanistan can sue for their release.

"These sorts of national security decisions should be left to Congress and the president for a simple reason: accountability.

"Suppose elected officials let a terrorist go free and the unthinkable happens -- another attack takes place. The American people have an easy remedy. They can vote those officials out of office. But if it's a judge who makes the decision, voters have to live with it. There's no way to hold the judge accountable, because courts -- quite properly -- are insulated from political pressures.

"The flip side of the coin is that judges must leave political decisions to the politicians."

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