This is a rush transcript from "The Journal Editorial Report," June 28, 2008.
PAUL GIGOT, HOST: Up next on the "Journal Editorial Report," from gun rights to Gitmo, an historic Supreme Court term comes to an end. We'll take a look at the highs and the lows.
With retirements rumored, what impact will November's presidential election have on the so-called Kennedy court?
Reassessing the axis of evil. As the Bush presidency winds down, a look at the administration's changing stance towards North Korea and Tehran.
But first, these headlines,
(FOX NEWS BREAK)
GIGOT: Welcome to the "Journal Editorial Report." I'm Paul Gigot.
The Supreme Court ended its term with a bang, tossing out one of the nation's strictest gun control law and ruling for the first time that the Second Amendment protects an individual's right to bear arms, not just the right of the states to maintain militias.
Here a look at that historic case as well as the other big rulings of the term is Jan Crawford Greenburg, author of the book "Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court."
Welcome, Jan Crawford Greenburg, great to have you back.
JAN CRAWFORD GREENBURG, AUTHOR OF "SUPREME CONFLICT": Thanks, Paul. It's great to be back.
Let's take a look first at the gun rights case, 5-4 decision, very close. A lot of people thought there might be more justices on the majority side. Were you surprised it broke down along ideological lines?
GREENBURG: I was and I'm not alone. Even the gun control advocates, the people who were strongly defending this law in D.C. and other laws across the country, left the arguments after this case thinking, not only would they lose, but they were going to lose big. As we saw yesterday yet another 5-4 decision by a closely divided court on the key controversial social issues that so divide the court — (AUDIO PROBLEM).
GIGOT: This only applies to federal law because that's what controls in the District of Columbia. That does not apply necessarily to state laws like Chicago and other bans on weapons. What you think will happen when those laws are inevitably challenged in these cases go back to up to the court?
GREENBURG: Paul, I see no way — I mean, I know there's a way you can argue that it is limiting. Some have made that point. But again, if you read this decision yesterday, the principle is clear. With the reasoning in this decision, I see no way some of those other laws, like in Chicago, San Francisco, will be able to stand. I just cannot see it.
Not only those laws — those are pretty strict and gun bans, just like we had here in the nation's capital. Other gun laws and restrictions on gun ownership also we will see come under attack right away.
Here in D.C., you will see residents lined up to buy guns legally for the first time in 30 years. You are going to see lawsuits across the country challenging gun restrictions.
GIGOT: Let us talk about the broader term and the lessons you took away from where the court was headed this term. Was this another one of those Supreme Court term, where Anthony Kennedy was the decisive vote on a lot of these hot button issues?
GREENBURG: It was. Look, it wasn't as much as we saw last term when he was in the majority in those 5-4 cases in every case because the court was not as closely divided this term. We did not have as many 5-4 decisions. We did not have as many of those decisions that literally — at the end of term, last term, remember they that upheld a federal law banning partial birth abortion. They struck down voluntary school desegregation plans, very controversial emotional issues that deeply divided the justices. You had justices last year, actually from the bench, rolling their eyes, slapping their heads in disgust when the conservatives were announcing these decisions.
We did not have those kinds of cases. They were big cases. The gun case that we talked about, a case from Guantanamo, a very significant case on whether or not detainees can get into federal court. The court said yes. Another one with Justice Kennedy in control. So in the big cases, in the hot button cases, Kennedy is still the man in the middle. He's like the jump ball. They toss him up and both sides are going to see which side is going to come down with him.
GIGOT: But sometimes he goes left. He went left on the death penalty and habeas corpus rights for enemy combatants. But on voting rights and the gun case he swings right. Is there any rhyme or reason to his jurisprudence?
GREENBURG: Yes, there is. This is the way to look at Justice Kennedy. Justice Kennedy will never say never. He will never say no death penalty, period. He will never say never. He will always try to find the middle ground.
We saw him say this week say no death penalty for child rapists. The key vote, the key fifth vote for the liberals. Yet, Kennedy is not someone who will say no to the death penalty ever. So if you just kind of think of Justice Kennedy as the justice who will not rule anything out — look last term in the school desegregation case. He tried again, even though he was the conservatives, he again tried to say, yes, but maybe, maybe, someday you may be able to use race a little bit. But he is not going to give those clear lines, that clear guidance that the conservative, the solid judicial conservatives, like Roberts, Alito, Scalia and Thomas, want to give.
GIGOT: On the Boumediene case where he was in the majority, that's the case that gave the habeas corpus rights at Guantanamo to enemy combatants, I sense some real frustration in Justice Robert's dissent. That again was a 5-4 decisions, one for the liberals. I sense some real frustration on his part. Do you think he ever got a chance to get Justice Kennedy on that one?
GREENBURG: I will say, I thought after the argument, he did. I thought the argument — going into the argument I said no way, the government will lose this case. The government thought it would lose the case. But Kennedy seemed kind of open during the argument. Roberts for the first time was participating. And he's obviously going to be a very, very influential chief justice — was participating in that argument. I thought maybe they have a chance with Kennedy.
But at the end of the day, I think they sat down, Justice Breyer started working on him, and he was not going to go there. I think you have to look at — the way this unfolded with the Bush administration is not — Kennedy kept emphasizing over and over, it has been six years, almost seven years now. No hearings for some of these guys. Again, that was a huge decision. For the first time in the history of this country alien enemy combatants detained overseas, captured overseas can get into the united states federal court and say they shouldn't be detained, and the military should not make those decisions, judges should make those decisions.
And you're right. Robert's dissent was clear, strong and firm. I think he was frustrated.
GIGOT: But he lost.
GREENBURG: But he lost, yes.
GIGOT: All right, Jan Crawford Greenburg, thanks so much for being here.
GREENBURG: It's great, Paul, to talk to you.
GIGOT: Still ahead, with Supreme Court retirements possible, our panel looks at what is at stake in the November's presidential election.
GIGOT: We are back with more of our Supreme Court roundup.
Joining the panel this week, Wall Street columnist and deputy editor Dan Henninger, opinionjournal.com editor James Taranto, and senior editorial page writer, who follows judicial issues for us, Colin Levy.
Colin, a sweeping landmark decision by Justice Scalia, but it's only 5-4. Does this mean with a change in one justice, the Second Amendment would be a dead letter?
COLIN LEVY, SENIOR EDITORIAL PAGE WRITER: It does. I think it was interesting, Paul, because it shows that for all of the talk of this being a right-wing court, it's far from anything near that. Scalia's decision was strongly worded and really laid down this as a fundamental principle. This is something that is an enumerated right in the Constitution. He spoke very strongly for it. There is still that concern that with the floater, with the Kennedy floater, it could have gone any which way.
GIGOT: You have a couple changes on the court, James, and this goes the other way.
JAMES TARANTO, OPINIONJOURNAL.COM EDITOR: Although the justices most likely to retire, Justice Stevens, who is 88, and Ginsburg, who is 75, and maybe Justice Souter, were all in the minority on this.
DAN HENNINGER, COLUMNIST & DEPUTY EDITOR: One thing you can add to this is the Second Amendment case was something of a tabula rasa. There is not a lot of legal precedent. There was a lot of scholarship on the Second Amendment behind this case. But if you're a president looking at the kind of justices who are going to look at the words of the Constitution and come to a conclusion — this was a perfect case study of the difference between the way liberals and conservatives think about the words in the Constitution .
GIGOT: Colin, let me ask you about the political impact of this decision. John McCain jumped out very fast and endorsed it, said this is a real triumph for individual liberty and rights. And Barack Obama issued kind of a hemming and hawing statement saying that "this will provide much- needed guidance to local jurisdictions across the country," end quote. What does that tell you about the politics of this issue?
LEVY: It tells you they are dancing all over the place, because this is an incredibly important issue to American people. It's something that really resonates. Both candidates are in a spot on this. John McCain was supportive of the decision yesterday, but in the past he has not always been the favorite candidate of the NRA. He has supported some various gun regulations. So, he also has made sure to sort of tell people that this is something he absolutely supports, this fundamental right.
In terms of Barack Obama's role on it, he wants to communicate to swing voters that he hopes to get — he also supports the Second Amendment's individual right. But just does not want to make liberals angry about the idea that there could be no gun regulation.
GIGOT: Colin, I have to tell you, I think he does not want to get anywhere near gun control or gun rights in this election at all.
GIGOT: He hopes it will go away and never come up.
TARANTO: Also fascinating was Obama's reaction to the Kennedy vs. Louisiana case the previous day. This is the case in which the Supreme Court said you cannot have the death penalty for raping a child. Obama came out four-square against the decision. He voted against Chief Justice Roberts and Justice Alito, who were both dissenters. And I think that shows you something about where he thinks voters stand on the death penalty.
GIGOT: Dan, let me take — let's look at the broader Roberts court now. I think this is the third term were Justice Roberts has been the chief justice. We now have a couple of years with Samuel Alito and John Roberts. What kind of justices have they been? Have they been the kind you expected they would be?
HENNINGER: By and large, they have. They are not the same as Scalia and Thomas. I think you could describe Alito and Roberts as minimalist, which is to say, they will rule off on very close technical grounds. They will not be expensive. They will hold the line again...
GIGOT: There are not liberal justices.
HENNINGER: They are not liberal justices.
GIGOT: There's no danger they will be a Souter or a...
HENNINGER: Right. In simply conservative versus liberal terms, they are conservative. But in terms of doctrinal conservatism, they are not singing from the same hymnal as Scalia.
GIGOT: James, is this a conservative court? Colin said it isn't.
TARANTO: It is getting there, but we need one or two more.
GIGOT: All right, James.
Still ahead, reassessing the axis of evil. Should the Bush administration really take North Korea off the terror list? Our panel weighs in after the break.
GIGOT: North Korea handed over a long overdue accounting of its nuclear activities this week, triggering an announcement from the Bush administration that it will ease some sanctions against a country it once denounced as part of the axis of evil. The president said he would lift economic penalties imposed under a U.S. law banning trade with enemy nations and said he would notify Congress that he intends to remove North Korea from the list of state sponsors of terror in 45 days.
We are back with Dan Henninger. Also joining the panel, foreign affairs columnist Bret Stephens, and editorial features editor Rob Pollack,
Rob, we had Secretary of State Rice come to see us last week, and she said, this process is the only way that we can get a handle on the plutonium that is the raw material of the nuclear weapons. It is the only way we can get a handle on how much they have and what they did with, so it is worth doing.
ROB POLLACK, EDITORIAL FEATURES EDITOR: I do not doubt that we are learning something from this process. On the other hand, I have no faith at all that this process has any chance of disarming North Korea. And therefore it does not justify the terrible precedent that's being set here in terms of accepting a totally late and incomplete declaration.
GIGOT: Wait a minute. We've got access to the reactor, we've got access to the waste, we've got access to 190,000 — I think — pages of North Korean records, and we will have some kind of movement for verification on the ground in North Korea. Why is that not enough?
POLLACK: We have nothing on uranium enrichment from North Korea. We are pretty sure they have a program for that.
We have nothing on their proliferation activities. Remember, it was just last year that Israel blew one up a North Korean-built nuclear reactor in Syria. So we know they are very active proliferators.
Is it nice that we're learning something about the plutonium use of the puzzle? That is great. But I do not think anyone thinks the process will actually disarm North Korea. If you are not going to disarm them, how can you justify setting this precedent, vis a vis the world's other nuclear states?
GIGOT: Do you know who agrees with Rob on that? Dick Cheney, the vice president. According to a lot of his people internally, they are not happy with this direction by the president.
BRET STEPHENS, FOREIGN AFFAIRS COLUMNIST: This has been a Condoleezza Rice administration as far as...
GIGOT: Second term.
STEPHENS: Second term in terms of foreign policy. We also do not know how many nukes they actually built, even though they exploded one less than two years ago.
I think the problem here is that you get into a quote, unquote "process" with the North Koreans which can drag on endlessly, in which they constantly pocket concessions from the united states in exchange for things they promised us before. More than that, we buy into the illusion that we are getting all of the information out of North Korea that we really need. And that is not at all clear.
One of the stunning things that occurred just now is we found traces of uranium on the very pages that they handed over to us. You can build a bomb with plutonium and you can build it with uranium. We have no idea how much progress they've made with that uranium track. And if they did progress, are they proliferating that to Iran, to Syria and maybe even worse actors.
GIGOT: The administration said taking North Korea off the terror list is no big deal. It is mostly symbolic. There are still a lot of other sanctions on North Korea. Do you agree with that?
HENNINGER: Yes and no. I think what I took away from our meeting with Secretary Rice last week is that what she is saying, and she keeps saying we are aggressive, but these are the limits of what the world is willing to do in North Korea or Iran. In other words, the military option is not on the world's table. It may be on America's. It may be on Israel's. It is not for anyone else. So, she said we should impose economic and financial sanctions on this country and do it very aggressively.
GIGOT: But that is a false choice, I mean, military or this current process, right? Isn't there some kind of pressure, greater pressure that you can apply in between that?
POLLACK: Look, to be fair to the administration, is not the Bush administration's fault that North Korea went nuclear. That happened because of the Clinton administration's 1998 agreed framework. But the opportunity here for the Bush administration was to put a stop to the kind of diplomacy that is a lie to the American people and a green light to the world's — to the other would-be proliferators around the world. And they failed to do that.
GIGOT: On Iran, do you agree with that?
STEPHENS: I think that's exactly right. If you are the Iranian leadership looking at this and you're looking at the cases of North Korean on one side and Iraq on the other, the conclusion you draw is you better get a nuclear bomb as quickly as possible, because when you have the nuclear capability, your diplomatic ability is that much greater and the West is going to make more concessions, not fewer.
GIGOT: All right, Bret, thanks very much.
We have to take one more break. When we come back, our "Hits and Misses" of the week.
GIGOT: Winners and losers, picks and pans, "Hits and Misses," it's our way of calling attention to the best and the worst of the week.
Item one, the decline of the American — I stress American — millionaire — Dan?
HENNINGER: The eternal question of how to marry a millionaire has a new answer, forget the United States. Brazil, Russia, China and India are creating millionaires at a rate five times that of the United States. Yet here we have a presidential candidate in Barack Obama, who wants to hammer these people with high taxes.
Now, this isn't just about rich people. What this data means is that investment flows, entrepreneurship for sure, and even philanthropy is moving from here to there. So yes, the rich are different from you and me. They live somewhere else.
GIGOT: All right, Dan.
Next, a hit to Britain, where commonsense still prevails most of the time — Bret?
STEPHENS: Wonderful news out of Britain. There was a recent poll that showed that a majority of Britons are still not convinced that global warming is a man-made. And they also have doubts as too whether it will be that significant in terms of their lives. This is important in part because the British have been bombarded non-stop with the most extraordinary kinds of a global alarmism. It also tells us something about their character. These are the people that brought us the Magna Carta, parliamentary democracy, Winston Churchill, Margaret Thatcher.
GIGOT: Bring out the violins, Bret.
STEPHENS: And I think they just might be in a position to save us from the totalitarian agenda behind the environmental hysteria. I think they deserve a hit for showing a great deal of good sense.
GIGOT: All right, Bret.
Finally, a hit to Zimbabwe's opposition leader, Morgan Tsvangirai — Rob?
POLLOCK: Yes, Paul, unfortunately, Mr. Tsvangirai was forced by violence to withdraw from the presidential runoff in Zimbabwe that happened on Friday. That was something that was clearly rigged against him. On the other hand, at least this has focused at the world's attention on the unfolding humanitarian crisis that is in Zimbabwe under Robert Mugabe. It is time for the world to unite to delegitimize Mr. Mugabe and offer him a comfortable retirement if he gives up power voluntarily. And as for Mr. Tsvangirai, I think he really has to be considered the frontrunner for the next Nobel Peace Prize.
GIGOT: When you say united to do something, are you talking about military action?
POLLOCK: No, unite to delegitimize his regime, to turn him into a pariah for exclusion from various international bodies and so forth.
GIGOT: How are we going to get the United Nations to agree to do that? The United Nations can't agree to do anything about...
POLLOCK: Already, the United Nations has started to make some pretty strong statements. The G-8 did that this week as well.
GIGOT: So are you hopeful that something will happen here?
POLLOCK: I am hopeful the world will start to come together, yes.
GIGOT: All right, I hope you are right, Rob, because that is an awful situation. Thanks.
Time now for your "Hit or Miss" of the week. Pete List, from Cross Junction, Virginia, write, "A hit to Senator John McCain for his proposed $300 million-dollar prize for a major event in electric battery technology. This follows the capitalist system tradition of huge rewards and huge advances that benefit mankind. This is the best single idea put forward during this campaign season. Here's to the free market and the power of incentives," end quote.
Remember, if you have a "Hit or Miss" of the week, please send it to us at email@example.com or log onto opinion.journal.com. We'll read one at the end of the show every week.
That's it for this week's edition of the "Journal Editorial Report."
Thanks to my panel, and to all of you for watching.
I'm Paul Gigot. We hope to see you right here next week.
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