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The Court McCain Wants

By Ruth Marcus
Wednesday, June 18, 2008

Conservatives, seizing on the Supreme Court's ruling last week on Guantanamo detainees, want to turn the court into election fodder.

I hope they succeed.

No issue in this campaign is as simultaneously neglected and important. And the opposite reactions of John McCain and Barack Obama to the decision underscore how much is at stake for the future of the court.

Obama hailed the ruling for showing that "a state can't just hold you for any reason without charging you and without giving you any kind of due process -- that's the essence of who we are."

McCain was initially mild, saying only that the decision "obviously concerns me." By the next day, though, he was as over the top as Justice Antonin Scalia, who warned that the court's action "will almost certainly cause more Americans to be killed." Legal reasoning -- or ad copy for the Republican National Committee?

In any event, McCain got the point. "One of the worst decisions in the history of this country," he thundered last Friday.

Worse than Roe v. Wade, to take an example on which McCain and I differ but that illustrates the overheated nature of his reaction?

This reaction makes little sense from a man who has repeatedly vowed to shut down Guantanamo -- on his first day in office, no less -- and ship its remaining prisoners to Fort Leavenworth.

After all, the whole point of stashing the detainees at Guantanamo was to avoid giving them the rights that everyone acknowledged they would have on U.S. soil. So the McCain solution -- sending them to Leavenworth -- would create the very situation he now decries.

More important, the ruling will not have anywhere near the disastrous consequences forecast by the McScalias of the world. The five-justice majority did not order that any detainees be freed. It didn't give al-Qaeda fighters an express ticket to federal court. In fact, it said, "except in cases of undue delay," courts should stay out until the military makes the first judgment about whether prisoners should be held or released.

McCain lamented that the court was giving rights to "enemy combatants . . . ardently seeking to destroy the United States of America and all that we stand for and believe in." Strikes me that a big part of what we believe in is the rule of law and the notion that people can't be held indefinitely without a fair hearing.

As his evolving reactions to the Guantanamo case may indicate, legal issues are not at the center of McCain's policy interests. But they are a top priority for conservative activists, which makes me all the more nervous about what a McCain presidency would mean for the court. Yes, a Democratic Senate could temper the kind of nominee McCain would select, but a conservative legal movement whose rallying cry is "No More Souters" will be hard to satisfy with an unknown commodity. Remember Harriet Miers?

The next president is almost certain to have one appointment, and quite possibly two or more. In addition, the oldest justices are also the most liberal: John Paul Stevens is 88; Ruth Bader Ginsburg is 75.

As a result, a President McCain could shift the court significantly to the right, while a President Obama would be lucky, even with a Democratic Senate, to nudge the court even a bit in a liberal direction. More likely, he would merely be able to maintain the shaky, conservative-leaning status quo.

And it is shaky indeed -- not just when it comes to abortion rights, the usual focus of Supreme Court debate in election years. Certainly, the addition of one or two conservative justices could mean, if not Roe's explicit demise, then a dramatic curtailing of the right to choose. Yet the court is at a tipping point on issues that range from the scope of presidential power to the separation of church and state to the future of affirmative action.

Ironically, one of the casualties of a McCain appointee to the high court could be McCain's signature campaign finance legislation. The handwriting for the demise of McCain-Feingold is already on the wall -- and it comes from the very justices he praises as model nominees, Chief Justice John Roberts and Justice Samuel Alito, who joined in a ruling last year to overturn a key part of the law.

What, one wonders, would a President McCain say if and when the rest of McCain-Feingold goes -- that this, too, is one of the worst decisions ever?

marcusr@washpost.com

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