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Now much of the Detention Act passed by Congress will end up being tested in the courts in the coming years. Those courts were the subject of a meeting just a few blocks away from the Senate. Retired Supreme Court Justice Sandra Day O'Connor was presiding over a two-day conference on the independence of the judiciary. It was a conference spurred by her concern over recent attacks on the courts.
Here's NPR legal affairs correspondent Nina Totenberg.
NINA TOTENBERG: The conference brought together the glitterati of the business, legal and academic worlds from Warren Buffett to Chief Justice John Roberts, from the former Speaker of the House Newt Gingrich to the chief justices of several state courts. No panel of speakers, though, more epitomized the current conflict than the panel with Gingrich, former Senate Democratic leader Tom Daschle and former Republican Senator Warren Rudman. With five Supreme Court justices sitting in the front row, Gingrich led off his panel suggesting that there are times when the Supreme Court should be defied.
Mr. NEWT GINGRICH (Former Speaker of the House): What I'm suggesting is when you get to fundamental centers of power or fundamental centers of cultural belief, if the court decides to rewrite the Constitution, it is then challenging the authenticity of the other two branches.
TOTENBERG: That prompted Senator Daschle to ask Gingrich who then would be the ultimate arbiter of the law? After all, he noted for over 200 years it's been a given that the Supreme Court is the final interpreter of the Constitution.
Mr. TOM DASCHLE (Former Senate Democratic Leader): What would you suggest ought to be the message to the country when a judicial review case is before the court as to whether or not legislator or the executive branches are to adhere to?
Mr. GINGRICH: I think except those cases so clearly at variance with the national will, they should - they adhere to it.
Mr. DASCHLE: You know, what I was saying though -
Mr. GINGRICH: In those cases where there - cases where there are at variance with the national will, if they honestly believe it is wrong, the other two branches have an absolute obligation to render independent judgment.
TOTENBERG: Senator Rudman cut in with this observation.
Senator WARREN RUDMAN (Republican, New Hampshire): In the final analysis they do have a way, although it may be cumbersome and difficult. There is nothing that says, because the Constitution allows us to govern ourselves, if we as a nation were overwhelmingly opposed to a decision of, say, the United States Supreme Court, we as a nation have a method to fix that.
TOTENBERG: The fix of course is a Constitutional amendment. But Gingrich rejected that argument.
Mr. GINGRICH: What I reject out of hand is the idea that by five to four judges can rewrite the Constitution, but it takes two-thirds of the House, two-thirds of the Senate and three-fourths of the states to equal five judges.
TOTENBERG: Oh, really, responded Senator Daschle. Al Gore accepted the Supreme Court's judgment on the outcome of the presidential election in 2000 even though that ruling was by a margin of five to four.
Mr. DASCHLE: What if Al Gore had said I don't agree? And what if all hundreds of millions people out there, even some who probably didn't vote for him said, you know, Al Gore got screwed and I don't think he ought to agree. And we ought to do what they're doing in Mexico right now. And we ought to just to get out in the streets and there ought to be chaos and there ought to be a new election.
TOTENBERG: About the only thing the three agreed on was the need for the judiciary to be vigilant in checking executive and even legislative actions in time of war. Senator Rudman.
Senator RUDMAN: When the country is in the greatest jeopardy, whether it be in terms of a war, in terms of a terrific economic or natural crisis, that is the time for the courts to be more involved, not less involved. Because the greatest danger of the liberty comes when there is great fear on the country.
TOTENBERG: Former House Speaker Gingrich concurred.
Mr. GINGRICH: I fear a strong executive branch. I believe the power you give to hunt down a terrorist all too rapidly becomes a power of an out of control U.S. attorney to hunt down somebody for other reasons. There is a barrier point where the judges are the last defense of liberty.
TOTENBERG: Nina Totenberg, NPR News, Washington.
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