In the case of Boumediene v. Bush a liberal majority decided that terrorism suspects being held in Guantanamo Bay had the right to seek their release in federal court.
Scalia delivered a scathing dissent pointing out that for the first time the Supreme Court was conferring constitutional rights to non-Americans in a decision that would cost American lives:
The game of bait-and-switch that today's opinion plays upon the Nation's Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this Court's blatant abandonment of such a principle that produces the decision today.In a 2008 speech discussing America's war with radical Islamists, Scalia remarked:
War is war, and it has never been the case that when you capture a combatant, you have to give him a jury trial in your civil courts. It's a crazy idea to me...If he was captured by my army on the battlefield that is where he belongs.Scalia also made profoundly important remarks on the topic of "torture," the left's favorite bad word for any effort used to extract life-saving information from jihadists. With the common sense that was his intellectual hallmark, Scalia noted:
We have laws against torture. The Constitution itself says nothing about torture. The Constitution speaks of punishment. If you condemn someone who has committed a crime to torture, that would be unconstitutional...Listen, I think it's very facile for people to say, "Oh, torture is terrible." [But] posit the situation where a person that you know for sure knows the location of a nuclear bomb that has been planted in Los Angeles and will kill millions of people. You think it's an easy question? You think it's clear that you cannot use extreme measures to get that information out of that person?
The last confirmation in the eighth year of a presidency was Justice Anthony M. Kennedy, whose 97-to-0 vote in February 1988 came after two failed nomination efforts by President Reagan in the face of a Democratic-controlled Senate in late 1987. Kennedy is seen as a traitor among conservative activists, who view his rulings on abortion and gay rights with the liberal bloc as an example of GOP leaders choosing political expediency over ideological rigidity.
The only other attempt to fill a vacancy during a presidential election year came in 1968, when President Lyndon Johnson tried to elevate Abe Fortas to be chief justice. The Senate blocked Fortas. Subsequently, the other nomination to fill Fortas’s spot as associate justice was withdrawn during the final months of Johnson’s presidency.
In 1960 the Democrats passed a resolution to stop Eisenhower.