Sunday, March 14, 2010


Conservative Inconsistency

The Wall Street Journal for March 13-14 of this year has two articles on the first page of the Weekend Journal section regarding lawyers who have represented prisoners at Guantanamo in their efforts to obtain habeas corpus hearings. Of particular interest are seven lawyers who represented members of Al Qaeda. Writer Stephen Jones argues the "liberal" case, that these individuals must be given the same constitutional rights as any other criminal suspect being held in prison. Writer Andrew McCarthy argues that these particular prisoners are not ordinary criminals but prisoners of war and should simply be kept in prison until the war is finished. The point at issue is whether the lawyers who represented these individuals should be named and whether they should be given positions in the Justice Department.

I won't repeat the "liberal" case. You can read it yourself in the WSJ. I'm interested in the "conservative" case, which asserts that these lawyers volunteered to defend the individuals in question. Hence, they may have political prejudices that would preclude them from making unbiased policy judgments as members of the Justice Department. I won't argue the case. However, it struck me that the argument was the exact opposite of the "conservative" argument in favor of the appointments to the Supreme Court of justices Roberts and Alito. In the case of Roberts and Alito the argument was that their political views shouldn't matter. They are required to interpret the law impartially, just as an engineer is required to design a bridge impartially and to make the bridge as safe as possible. One doesn't question the political views of an engineer; why question the views of a judge?

It's a good example of "conservative" inconsistency.


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