As one of you noted in the comments to this post, Jess Bravin and J. Lynn Lunsford's article in yesterday's Wall Street Journal is a "must read." (Gavel bang for pass-through link: How Appealing.)
(Random bit of trivia: as noted here, Bravin is the brother of one of the Elect, Eric Bravin, who clerked for Justice Ginsburg during October Term 2000.)
Here are some highlights from the article:
On Nov. 22, U.S. Circuit Judge J. Michael Luttig was at work in his chambers here when he received a telephone call telling him to switch on the television. There, he saw Attorney General Alberto Gonzales announce that the government would file charges against Jose Padilla in a federal court -- treating the accused terrorist like a normal criminal suspect.
The judge was stunned. Two months earlier, he had written a landmark opinion saying the government could hold Mr. Padilla without charge in a military brig. (Read the opinion.) The decision validated President Bush's claim that he could set aside Mr. Padilla's constitutional rights in the name of national security. The judge assumed the government had a compelling reason to consider the suspect an extraordinary threat. Now Mr. Gonzales wanted the courts to forget the whole case.
It didn't take long for the judge's anger to burst out into the open. The next month he wrote that moves such as the attorney general's cast doubt on the Bush administration's "credibility before the courts." Judge Luttig tried to block Mr. Padilla's transfer to civilian custody from the brig. (Read the opinion.) The administration's top litigator fired back that the judge "defies both law and logic."
The clash, which underscores the increasing skepticism among even some conservative jurists toward the Bush administration's sweeping theories of executive power, culminated yesterday in Judge Luttig's resignation. The 51-year-old judge, once considered a likely Bush nominee to the U.S. Supreme Court, stepped down from his lifetime seat on the Fourth U.S. Circuit Court of Appeals to start a new career in Chicago as general counsel for Boeing Co.
WOW. As one of you accurately noted in an email to A3G, Luttig comes off in the article as alternating between "petty and principled."
And check out this, from later on in the article (after a lengthy recitation of the procedural history of the Padilla case, which A3G will spare you):
People familiar with Judge Luttig's thinking say he knew his condemnation of the administration [in one of his Padilla opinions] would bring a personal cost but he believes that judges must apply the law regardless of its political implications. These people say he has been disillusioned by the encroachment of politics on the judiciary -- and the view that judges are on "our team" or "their team."
People close to the Bush administration see it differently. They dismiss Judge Luttig's opinion as a judicial tantrum, noting that it came after he was passed over three times for a Supreme Court position. President Bush nominated Judge Roberts, Harriet Miers (who withdrew) and Judge Samuel Alito.
Interesting, interesting stuff... More to come, as A3G goes through her inbox...
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