There is one fundamental issue that matters more than any other in choosing the next Supreme Court justice–a wartime Supreme Court justice. More than abortion. More than affirmative action. More than the Ten Commandments in courtrooms. The issue is national security.

Will the next high court nominee, for example, side with the Johnnie Cochran-for-Jihadists model of extending the entire panoply of U.S. civilian due process rights to illegal foreign enemy combatants?

Andy McCarthy elaborates:

Exactly what kind of procedures and protections are our enemies entitled to in these unprecedented court proceedings? Do they get counsel? Do they get discovery — including battlefield intelligence? Are these to be full-blown trials in which we take soldiers off the battlefield so that they can testify about the circumstances of the particular enemy combatant’s apprehension during this firefight or that? How much, in the middle of a war, should federal judges be able to second-guess commanders in the field? If the jurisdiction of the U.S. courts now extends to Guantanamo Bay, Cuba, why shouldn’t it extend to Baghdad, or Kandahar, or anyplace else on the globe where American forces are in de facto control of foreign territory? Are the foreign terrorists entitled to Geneva Convention protections even though they themselves pervert the laws and customs of war?

The answer to these and other questions is: We don’t know. The Supreme Court provided precious little guidance in Hamdi and Rasul, and Congress has not intervened, so the lower courts are on their own: fashioning new procedures and answering legal questions as they arise, ad hoc. Cases are making their way up the system’s chain — and they may land in the Supreme Court’s lap as early as next term.

McCarthy points out that rumored short-lister AG Alberto Gonzales–as an architect of the Bush administration’s aggressive counterterrorism and detention policies–might be on the right side of these matters, but would likely be forced to recuse himself:

President Bush has quite appropriately made national security the defining issue of his presidency. It remains the defining issue even as he considers court vacancies. So he must ask himself: Are there five reliable votes on the Supreme Court in favor of national security? Are there five votes against the judicial weaving from whole cloth of a new set of deferential due-process norms for international terrorists?

The answer is clearly “no.” As long as it is, the president needs to choose a justice who will not only stand firm, but one who can actually hear the cases.

Ramesh Ponnuru noted Gonzales’s recusal problem a few weeks ago:

The conflicts of interest that Gonzales would have as a justice would surely figure in his confirmation hearings. William Rehnquist came to the Supreme Court from the Nixon administration, where he headed the Justice Department’s Office of Legal Counsel. The law on recusal was looser back then, but Rehnquist still had to recuse himself from several cases. Moreover, his failure to recuse himself from a 1972 case that touched on his responsibilities in the administration was still being brought up by his opponents 14 years later. Senator Mac Mathias said that Rehnquist’s failure to recuse himself was the principal reason he was voting against his elevation to chief justice in 1986. Senators Leahy and Sarbanes also cited the issue as a reason for their opposition to Rehnquist. A mere promise to do the appropriate thing will not be enough to appease Gonzales’s critics.

Nor should it. The problem is not, after all, that Gonzales will fail to recuse himself in compliance with the law. It’s that complying with the law, given the extent of those conflicts, will leave the Supreme Court with only eight and a half justices. That can’t be what President Bush has in mind.

Edward Whelan buttresses the case against Gonzales here.

Let’s hope the worrying is all for naught. Gonzales declared “I am not a candidate” in Denver yesterday. We’ll see.

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More SCOTUS speculation from Lorie Byrd at Polipundit.

Pejman Yousefzadeh takes Democrat disingenuousness about “mainstream conservatives” to task.

Erick at RedState on the knowns, unknowns, and unknown unknowns.

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