A wannabe emperor in search of a crown


President Bush undoubtedly is feeling a little peckish. When his most passionately held beliefs come before the courts, he almost routinely gets his hand slapped.

After nearly six years of trying to retool the federal bench _ and getting more of his appointees confirmed than any other recent president _ he is having remarkably little success in getting some of his boldest moves declared constitutional.

Most notably, he ran into judicial roadblocks both in trying to hold detainees at Guantanamo Bay, Cuba, without going through legal channels and trying to circumvent the Geneva Conventions, which govern the treatment of prisoners of war.

He also has been thwarted on a wide variety of issues affecting everyday life in America.

One federal judge has just ruled that the Bush administration erred in getting rid of legal protection for millions of acres of national forests by opening them up to logging and mining.

This comes just after an inspector general for the Interior Department testified before Congress that the department has flouted rules to protect taxpayers. And four government auditors charge Bush appointees with stopping the recovery of millions of dollars from oil and gas companies said to be defrauding the government.

Another federal judge has ruled that Bush’s warrantless wiretapping program is unconstitutional. "There are no hereditary kings in America and no powers not created by the Constitution," the judge said.

Last year, federal judges around the country refused a White House demand that they intervene in the Terry Schiavo case in Florida and order a feeding tube reinserted in the comatose woman doctors had found to be brain-dead. The autopsy confirmed that diagnosis.

Federal courts also have struck down the Partial Birth Abortion Ban Act of 2003 proudly signed by Bush. Judges have declared the law unconstitutional because it lacks an exception to protect the health of the woman.

Bush has not sat idly by accepting what he calls the "activism" of federal judges. He has proposed steadily more conservative judges to be "activist" in favor of his pursuits. While Democrats have filibustered some of his nominees, he has succeeded in getting most of them confirmed.

And relying on his Republican majorities in both the House and the Senate, he has proposed legislation to counteract the courts’ findings.

For example, the president’s response to the adverse ruling in the Guantanamo case is to propose legislation to strip federal courts of the power to hear detainees’ challenges of their treatment and indefinite detention at Guantanamo Bay.

Immediately, nine retired federal judges fired off a letter accusing the administration of having as its goal circumventing a basic constitutional right _ the right of the accused to a speedy and fair trial. The judges wrote: "Depriving the courts of habeas jurisdiction will jeopardize the judiciary’s ability to ensure that executive detentions are not grounded on torture or other abuse."

Bush’s answer to being told of the illegality of his efforts to have wiretaps installed without court orders is to ask Congress to override the courts and give him that authority.

In the past six years Bush has had mixed results in cases of interest to him in the nation’s highest court, but he has lost high-profile cases, including affirmative-action cases that upheld the University of Michigan’s efforts to ensure a diversified student body.

Last year he won confirmation of two new justices to the nine-member Supreme Court. As the first Monday in October approaches when the court begins its fall term, with 31 cases already accepted for review, the White House is hoping that the new chief justice, John Roberts, and Justice Samuel Alito Jr. will swing the court decidedly to the right.

Last term, to Bush’s dismay, outgoing Justice Sandra Day O’Connor was the swing vote on a number of cases the administration lost.

This promises to be a lively, even momentous term. The justices have agreed to hear such significant cases as the constitutionality of the congressional ban on partial-birth abortion. Another case will decide whether the goal of diversity may justify the use of race in deciding which students go to which public schools.

Yet another case will again revisit the controversial issue of how much latitude judges have in imposing sentences, and could shake up California’s entire judicial system. And, not least, the high court for the first time will look at global warming and review whether the Environmental Protection Agency was wrong to argue that the Clean Air Act does not provide the federal government authority to regulate greenhouse-gas emissions.

You can bet the president has his fingers crossed that his streak of ill fortune in the federal courts is ending and that when the November congressional elections are over, he will control not only the executive branch but also the legislative and judicial branches.

(Scripps Howard columnist Ann McFeatters has covered the White House and national politics since 1986. E-mail amcfeatters(at)hotmail.com.)