By Marc Seltzer; originally published on July 9, 2009, at politicsunlocked.com.
(Linda Greenhouse’s New York Times piece about the confirmation hearings for Elena Kagan raised the issue of whether a justice can be forthcoming in their testimony to congress. Interestingly, Kagan has articulated her belief that the executive brach has largely unfettered authority in the areas of national security, the point that I wrote about in reference to the Sotomayor hearings. Still, I do not see any reason for Kagan to speak openly in the upcoming confirmation hearings in light of the intense politicization of the process. My early post is reposted below.)
If there is one legal question that is profound and topical, the discussion of which would be deeply thought provoking and educational in the Supreme Court nomination hearings of Judge Sonia Sotomayor, it is the constitutional division of power between the different branches of government.
The power struggle between the branches is most notably implicated in the national debate over the Bush administration’s conduct of foreign policy and war. President Bush and Vice-President Cheney asserted generally exclusive executive branch authority in the conduct of intelligence, detention of prisoners and avoidance of oversight in national security operations after 9/11.
Now that Bush and Cheney are out of power and more information is coming out about their conduct, opponents of such policies are on the attack, calling for investigation. Only the most recent issue is whether Vice-President Cheney directed that the CIA withhold information from Congress that Congress has by law, demanded that the executive branch provide. Other red-hot manifestations are whether the use of torture by the administration can be subject to explicit laws banning such activity, and whether the President was in fact required to brief congress regularly on its conduct of foreign policy and military action, as Congress has demanded.
Underlying this and other such conflicts is the question of constitutional authority in the different branches of government. The President is the Commander-in-Chief. Does this grant the President sole authority for decisions relating to national security, or is it an authority shared by the peoples’ representatives in Congress?
In the same vein, what are the limits of such Presidential authority? Can the President authorize torture if he believes it is necessary for national defense? If Congress requests that the President provide information on on-going military operations, can the President ignore the request if he believes that to follow it will harm the operations?
The ultimate answers to these questions cannot be known until the U.S. Supreme Court decides each issue in the context of specific facts presented in a lawsuit. But a Supreme Court nominee could give us her reflections and a certain education. This would be far more meaningful then the competing assertions of power by the administration and congress. Of no more use are the pundits and professors who weigh in. Almost universally, commentators take political positions based on desired outcomes, but give no real insight into what the Supreme Court would be likely to do. The Supreme Court is deeply aware of its profound power and cautious about its legitimacy in asserting its authority over other branches of government – being the unelected branch. Pundits have none of this real world caution.
Consequently, the Supreme Court tends to go to great lengths to avoid constitutional questions, instead deciding cases on smaller technical matters whenever possible. There is nothing wrong with this judicial approach, except that it leaves many of us wondering where the bounds of legislative or executive power really are.
I, for one, have no doubt that they are not where the President and Congress say they are.