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Business Observer Friday, May 7, 2004 18 years ago

Judicial Insight

Doug Kmiec, a former constitutional adviser to two U.S. presidents, offers Tampa Bay area members of the Federalist Society insight into some of the U.S. Supreme Court's most prominent current cases.

Judicial Insight

Doug Kmiec, a former constitutional adviser to two U.S. presidents, offers Tampa Bay area members of the Federalist Society insight into some of the U.S. Supreme Court's most prominent current cases.

By David R. Corder

Associate Editor

Last February, Doug Kmiec met Michael Newdow for debate. The two sparred at Stanford University over Newdow's objection to the phrase "under God" in the Pledge of Allegiance. Newdow objected so much he persuaded the 9th Circuit Court of Appeals in California to agree with him. That decision set the stage for a highly publicized battle in late March at the U.S. Supreme Court.

The debate gave Kmiec, a Pepperdine University Law School professor, unique insight into Newdow's arguments. Kmiec shared some of that insight at an April 29 meeting of the Tampa Bay chapter of the Federalist Society for Law & Public Policy Studies at Tampa's Carlton Fields PA.

Chapter members heard a robust analysis from a legal expert who advised Presidents Ronald Reagan and George Bush from 1985-89 as constitutional legal counsel in the U.S. Justice Dept.'s Office of Legal Counsel. That's a job once held by Supreme Court Chief Justice William Rehnquist and Justice Antonin Scalia.

In a typical year, Kmiec says, the Supreme Court accepts for review only about 80 of about 5,000 certiorari petitions.

"This year the cases are really across the board," he says. "They're overshadowed somewhat, as they have been in recent days, by the cases on the war on terrorism. But there are very important cases dealing with separation of powers, and in particular the allocation of the power to the office of the presidency.

"It wouldn't be a Rehnquist term if there wasn't a few cases about states' rights and 11th Amendment immunity," he adds. "We've had a few of those this term as well."

Of those 80 or so petitions, however, Kmiec devoted considerable attention to Elk Grove Unified School District and David W. Gordon, superintendent, v. Michael A. Newdow.

"One of the cases that has gotten a lot of attention is very foundational," he says. It's a case that deals with this (American) flag, and it is a case that deals with students who are asked in Elk Grove School District in California to say the Pledge of Allegiance to this flag. One has, as lawyers, two reactions to this case. One is you can't believe that it's actually being litigated. The other reaction is, well, exactly what is the big deal?"

The issue centers on Newdow's atheistic views and his desire to protect his daughter from what he considers intrusive religious views. Kmiec says Newdow seems sincere in his belief that the pledge violates the worldview he tries to impart to his daughter.

"In some ways, that's the nice way to put it," Kmiec says. "The other way to put it is Mr. Newdow desires to censor and rewrite the history of the United States, because that's where the divide in this case is. Mr. Newdow sees the Pledge of Allegiance as the equivalent of a prayer, as a supplication to God, a petition to God, and in that sense would apply to all of the usual cases that the court applies to prayer."

Kmiec says Newdow's opponents view the pledge not as a prayer but as a summation of the Republic's founding principles, the commitment to liberty and equal justice - even though Congress did not enact the pledge until 1942 and then added the phrase "under God" in 1954.

"If you look at the legislative history of the Congress, one sees (the words) were added deliberately to contradict a worldview that sought to suggest that the origin of human rights comes not from a higher source but comes from the state, and that all human individuals are subservient to state," he says. "The Congress in the mid-1950s thought it was extremely important, as others in our history have thought it was extremely important, to link the Constitution's understanding to an even more foundational document, namely the Declaration of Independence. The Declaration of Independence being in essence the corporate charter. As one chief justice put it: The Declaration is the promise, and the Constitution is the fulfillment."

In that vein, Kmiec says, the pledge does not disrespect Newdow's worldview. He says it fundamentally recognizes the precepts written into the First Amendment of the U.S. Constitution, which permits its citizens to choose whatever religious belief they desire.

"But as a matter of corporate supposition, or presupposition if you will, those in defense of the pledge basically make the argument that there is no infringement on that individual right to have a recognition that including that right originates from a source other than government itself," he says. "In that sense, recognizing that rights are inalienable derived from a creator; that they are on a more secure footing."

The oral arguments were robust, Kmiec says, even though Newdow, an emergency room physician who later earned a law degree, represented himself. Newdow passed the California Bar exam solely to argue his petition. Kmiece says Newdow did well with his arguments.

"The justices seemed to be inclined, in one fashion or another, to do one of two things," Kmiec says. "They are either going to say Mr. Newdow doesn't have standing, in which this is an enormous run up for nothing. And he may not have standing because his wife has full custody of the child, and as custodian of this child under California law has the final decision with regard to all educational policy questions. So his standing is open to doubt, and that was explored in the oral arguments.

"But should they surpass the standing issue, it seems to be the justices themselves recognize this is a matter of history, patriotism and not coerced religious belief, and I would suspect that would be the outcome," he adds.

Those abstract issues of liberty and justice took on a completely different tone as Kmiec talked about the April 28 oral arguments over the fate of terrorist suspects Yaser Esam Hamdi and Jose Padilla.

"These are very uncomfortable cases," Kmiec says. "If you were to say to someone that the Republic of One Nation Under God, with equal justice for all, allows an American citizen to be detained for an indefinite period of time without counsel and without charge, they would say, 'Well, maybe, you ought to contemplate the words of that pledge a little bit longer.' That, of course, is the argument that Frank Dunham (Jr.), appointed legal defense counsel for Yaser Esam Hamdi made and (by) Ms. (Jennifer) Martinez, the appointed counsel for Mr. Padilla."

It's a problem for the court because U.S. armed forces captured Hamdi, in possession of an AK-47 assault rifle, on the battlefield in Afghanistan. Consequently, the 4th Circuit Court of Appeals ruled he fits the criteria as a wartime detainee. On the other hand, law enforcement officials linked Padilla to high-ranking Al-Qaeda financiers Ramzi bin Al-Shibh and Sheikh Khalid Muhammed. Each identified Padilla as a foot soldier interested in detonating a dirty bomb.

"Now, how do we know these things?" Kmiec asks. "We only know these things based on affidavits filed by the Department of Defense or, in Mr. Padilla's case, by a formal finding by the president of the United States that Mr. Padilla is an enemy combatant who if returned to the battle will do us harm and whose interrogation may do us some good. Is that enough? And that's the central issue. Do you trust the president of the United States and the person who has charge of that office to basically make that judgment based on that filing?"

Judging from the justices' questioning, Kmiec says those two petitions may rest on the votes of Justice Sandra Day O'Connor and Justice Anthony Kennedy. He describes them as the critical swing votes.

"One of the salutary things that has come out of not only the Hamdi-Padilla cases, but a case dealing with the detainees who are in Guantanamo Bay, Cuba, the difference between those being held in Cuba and here is, of course, they're in Cuba, and so Cuba is argued to be not within the sovereignty of the United States by virtue of the lease agreement we have with Cuba, which says that the ultimate sovereignty remains with them even though we have complete military jurisdiction over the military base," Kmiec says. "And so one legal issue in the Guantanamo case is: Does the court have jurisdiction at all to say anything with regard to an area that is formally at least out of the jurisdiction of the United States, and when in fact the people being held are non-citizens?"

In the Guantanamo case, Kmiec says, the U.S. Court of Appeals for the District of Columbia held there was no jurisdiction. He expects the Supreme Court to affirm the decision.

"I would also predict, and I hope no one is taking this down, that the court will also say that the Department of Defense and the presidential finding in the Hamdi and Padilla cases will prevail," he adds. "They will say that with a lot of extra words that will caution us about abuse of civil liberty ¦ in serious words that we should take account of. And some of the justices whether in dissent or concurrence, I predict, will lay out some future point for re-examination in the event abuses occur in the context of giving deference to the executive."

So what was the point of the court intervening in these three wartime cases? Kmiec asks. He refers to an historical analysis he recently completed for Justice Clarence Thomas and published by the Supreme Court Historical Society.

"It was easy to do, because what the Supreme Court says in wartime is 'thank you,' " Kmiec says. "The Supreme Court has been invited numerous times to say things in wartime, and by and large they have remained silent. They have waited until after the war to pronounce, to opine."

There is one reason why the court remains mum in such instances, Kmiec adds. He considers it an important reason, too.

"But the fact of the matter is the court has been judicious, and they've been judicious in particular because of something very wise that was once said by Justice (Robert) Jackson: 'If a president or a military decision-maker makes a bad decision that has the effect of abusing a particular civil liberty, or being one we regret over the long term, it is an incident; it is an incident to be regretted,' " he says. " 'If it comes to this court and we approve it, it is a precedent and it will be repeated, and it lies about like a loaded weapon ready for some executive officer or military leader who wishes to have some tool of oppression, to use that tool of oppression in a place that would make us most uncomfortable, and we would find most unwarranted.' "

"Justice Jackson's words are well worth repeating, and while I think the court's intervention in Hamdi, Padilla and the Guantanamo cases are all salutary from the standpoint that they've forced the executive to explain itself in each of those contexts, I suspect that's as far as they're going to go."

Douglas W. Kmiec

A respected constitutional scholar, Kmiec is an endowed chair in constitutional law at the Pepperdine University School of Law. He had served several years as dean and St. Thomas More professor of law at The Catholic University of America, Washington, D.C. Prior to that he served for nearly two decades on the law faculty at Notre Dame University.

A syndicated columnist for the Catholic News Service, Kmiec had contributed a regular column to the Chicago Tribune. He is a co-author of three books on the Constitution - "The American Constitutional Order," "Individual Rights and the American Constitution" and "The History, Structure and Philosophy of the American Constitution."

From 1985-89, he served as constitutional legal counsel under the U.S. attorney general. As such, he advised Presidents Reagan and Bush on constitutional matters. Reagan once described Kmiec's constitutional skills as "even-handed" and an example of "exceptional public service."

The Federalist Society

A group of conservative and libertarian lawyers founded the Federalist Society for Law and Public Policy Studies in 1982 on the principle that the state exists to preserve freedom. Members are committed to the principle that the separation of governmental powers is a keystone to the U.S. Constitution.

"We have fostered a greater appreciation for the role of separation of powers; federalism; limited, constitutional government; and the rule of law in protecting individual freedom and traditional values," the group publicizes on its Web site ( "Overall, the society's efforts are improving our present and future leaders' understanding of the principles underlying American law."

Members include more than 25,000 legal professionals throughout the nation and about 5,000 law students.

It promotes forums and other events that include topics of interests to opposing points of view.

Tom Barber, a shareholder in the Tampa office of Carlton Fields PA, coordinates activities of the society's Tampa Bay chapter.

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