Thanksgiving 2006

What I am thankful for this year? For the pleasure of engaging in spirited but well-intended and polite debate at Bench Conference over some of the most important legal topics of our time. No, that's not it. How about... for the fasincation and appreciation of watching the law and justice evolve, each at their own pace, during this turbulent time of terror? Nope. That's not it. Supreme Court Justice Antonin Scalia? I am only thankful for (and worried about) him when he goes duck hunting with the Vice President.

No, my gratitude this year is reserved for less poetic and more gritty things. I am thankful for the many brave people, in and out of government, who risked their careers, and perhaps their liberty, to leak to the media information about the CIA's secret prisons, and the Administration's extrajudicial domestic surveillance program, and the Defense Department's "Talon" spy program that has been monitoring anti-war activities at churchs. Yes, I understand that the public disclosure of these things has angered and annoyed the White House and its allies. And, yes, I know that it's bad P.R. to the rest of the world. But we cannot make good policy in this country unless we the people know what our government is doing in our name. So hail and thanks to the Whistleblowers for shedding light on the darkest recesses of our nation's work.

Hail and thanks, too, to all the brave federal judges out there (and a few state ones, too) who weathered the wind and fire of unjustified denigration and criticism by conservative politicians and their tribunes aiming to undercut the credibility and authority of the judiciary in the name of anti-activism. Every day in this country, conservative judges make "liberal" rulings and vice versa. Every day in this country, some mob somewhere (figurative if not literal) tries to screw a member of some minority out of something of value and a judge is there to put a stop to it. Every day in this country members of the judiciary do more honor to the Constitution than members in either of the other two branches of government. I am thankful for them, no matter which President appointed them or which members of the Senate supported them.

I am thankful particularly for Sandra Day O'Connor, the former Justice, who has become an outspoken supporter of the independence of the judiciary. The conservative jurist and Reagan-appointee-- the grandmother, for Pete's sake-- established herself after she left the Court as the most important and effective defender of the faith. Her pointed criticism of politicians like Tom Delay was priceless. I may not have agreed with many of her decisions as a Justice. But she is doing great work, historic work, in her new role.

I am also thankful for the brave and hard-working attorneys who at great personal inconvenience have helped the Guantanamo Bay detainees fight to determine whatever rights they may have. Apart from whatever relief these efforts may have brought to the detainees-- and in some cases that relief was real-- the attorneys who have challenged the government's terror classification and detention policies have done us all a great service by forcing the White House and the Congress and the judiciary to confront and resolve weighty constitutional issues that will be with us for as long as there is a "war" on terrorism. You may not agree with some of the judicial decisions these attorneys have fought for and won. You may in fact think that these folks are traitors for helping the "enemy." But no one can dispute that we are and will be better off with the legal clarity these rulings ultimately will bring to terror law.

I am thankful every time Attorney General Alberto Gonzales opens his mouth and says something vacuous. I am thankful for the politicians who voted in favor of the American Horse Slaughter Prevention Act in the House of Representatives. I am thankful for the writing of Dahlia Lithwick. And I am really thankful that I don't have to go to an airport and get onto a plane today. Have a safe and happy holiday, wherever you may be.

By Andrew Cohen |  November 22, 2006; 9:00 AM ET
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Posted by: MC | November 23, 2006 02:05 AM

Posted by: Dave | November 24, 2006 02:48 PM

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