Dance of the judicial activists

Senate Democrats' obstruction campaign against President Bush's judicial nominees aims to keep Mr. Bush's nominees off the bench so President Clinton's activist nominees can accomplish as much as possible. Democrats prefer judges, rather than the people, to run the country.

Last week, this column looked at the decision by a Clinton appointee to the U.S. Court of Appeals for the Ninth Circuit drastically restricting California's "three strikes" law. While the Ninth Circuit's Clinton activists undermined the fight against domestic crime, those on the Sixth Circuit are undermining the fight against crime from abroad.

TRENDING: Report: Capitol cop who shot Babbitt is in hiding

At year's end, eight of the Sixth Circuit's 16 full-time positions will be vacant. Though the court's chief judge last year warned that the court was "hurting badly" with four vacancies, Senate Democrats won't consider any of Mr. Bush's nominees though vacancies have since doubled. The reason is obvious. Six of the eight remaining judges are Democrat appointees, five of them by Mr. Clinton. Two of them recently ruled that excludable aliens – those who have no right to be in the country and whom the law treats as not having entered at all – have constitutional rights similar to legal aliens or even citizens.

The Supreme Court recognized more than a century ago that the power to exclude or expel aliens "absolutely or upon certain conditions, in war or in peace" is "an inherent and inalienable right of every sovereign and independent nation, essential to its safety, its independence, and its welfare." The Court reaffirmed in 1952 that policy toward aliens is "so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference." And in 1953, the Court held that excludable aliens have absolutely no rights regarding entry or exclusion and are treated as if they had not entered the country at all.

Despite all this, in January 2001, Clinton appointee Judge Karen Moore ruled that excludable aliens are indeed "entitled to the Constitution's most basic protections and strictures." Joined in this divided 2-1 decision by another Clinton appointee, Judge Moore struck down an immigration procedure used for decades and already upheld by the U.S. Supreme Court.

Mario Rosales-Garcia entered the United States as part of the 1980 Mariel boatlift from Cuba and was granted immigration parole. He was soon convicted of such things as grand theft, burglary, narcotics possession and resisting arrest and served time in both state (from which he escaped) and federal prison. The Immigration and Naturalization Service revoked his parole, deemed him "excludable," and ordered him detained until deported. This detention was indefinite because Cuba would not accept him, so Rosales-Garcia sued and claimed this indefinite detention violated his constitutional rights.

Judge Moore knew where she wanted to go in this case. Her tactic was to start with a category providing what she sought and then stretching, tweaking, and manipulating it to include excludable aliens.

The first category she fudged was the most general – "persons" with constitutional rights. Judge Moore described the issue in this case as whether the INS can "detain a person indefinitely without charging him with a crime or affording him a trial." Why use the more general "person" rather than the more specific (and accurate) "excludable alien"? Because the Supreme Court has held both that the Constitution gives certain rights to "all persons within the territorial jurisdiction" of the United States and that excludable aliens are "not entitled to the constitutional protections provided to those within the territorial jurisdiction of the United States." She simply picked the category that helped her reach the result she wanted.

The second category she fudged was narrower – classes of aliens who do have constitutional rights. She argued that the Supreme Court "has never held that aliens are utterly beyond the purview of the Constitution." Why use the more general "aliens" rather than the more specific "excludable aliens"? Because, as she correctly noted, "the Supreme Court has accorded aliens a panoply of (constitutional) rights." Those cases, however, did not involve excludable aliens. The dissenting judge noted that while Judge Moore's examples (some from the 19th century) involved "aliens who had entered the United States," excludable aliens are treated as if they had not entered at all. That distinction makes all the constitutional difference. No matter, she simply picked the category that helped her reach the result she wanted.

The third category she fudged was even narrower – things the government could not do even to excludable aliens. Because the government could not torture them, she said, it cannot indefinitely detain them. "We therefore find ourselves asked to draw a line of constitutional dimension between the act of torturing an excludable alien and the act of imprisoning such an alien indefinitely. We do not believe that the Constitution authorizes us to draw such a line."

This is the brave new world of judicial activism. As Humpty Dumpty put it, "when I use a word, it means just what I choose it to mean – neither more nor less." Clinton judges such as Judge Moore are busy re-creating the law and society in their own liberal image. They might just as well have said "cover me, I'm going in" because Senate Democrats are doing just, keeping Bush judges from interfering as the revolution continues.