NEWS

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May 12, 2006

Luttig resignation theories

Earlier this week the legal blogosphere was perculating from the news that super-star conservative Fourth Circuit Court of Appeals Judge Michael Luttig was leaving the bench to go into the private sector to become Boeing's General Counsel. Part of the reason the legal blogosphere hasn't stopped talking about this is because few could imagine resigning from such a coveted position (mind you his judgeship was a life tenured position...pretty sweet). Now Luttig was justifiably upset that he was passed over two times (if you include the Miers debacle it was really three times) for a Supreme Court position despite the fact that he probably had the most astute conservative bonafides. Another reason behind his departure, this one brought up in his resignation letter was that he will need to pay for his two children’s college tuitions (a dubious reason given that his salary was not paltry at $171 grand, and that the oldest of his two children is 14, which gives him more than enough time to save up something). Of course working for Boeing will definitely be more lucrative than the bench, but still.This is where the liberal blogosphere comes in. Over at The Plank (TNR's blog), Jason Zengerle links to a WSJ article that hypothesizes that one of the reasons Luttig stepped down was disgust with the Bush administration's handling of the Jose Padilla case:

At oral arguments in the Padilla case last year, Judge Luttig laid out a clear theory by which the Second Circuit's reasoning could be rebutted, at times seeming to lead the government's lawyer, Solicitor General Paul Clement, along with him.After Mr. Clement referred to the Padilla incarceration as a "nonbattlefield detention," Judge Luttig suggested another approach. "In effect, Mr. Clement, doesn't the United States have to be arguing that, at least in the war on terror, the battlefield includes the United States?" the judge asked. After repeated pressing, Mr. Clement agreed: "I am prepared to say that this is a battlefield."Another judge on the panel, Blane Michael, didn't seem so persuaded. Judge Michael and the panel's third member, Judge William Traxler were both Clinton appointees expected to be skeptical of the Bush administration's claims.When the opinion was issued on Sept. 9, Judge Luttig delivered a coup: a unanimous opinion, written by himself, declaring that the president's powers to detain those he considered enemy combatants apply anywhere in the world, including the U.S.Judge Luttig, according to a person familiar with the court proceedings, put his own credibility on the line, drawing on his own experience in national-security law and confidence in Bush administration officials he knew. He argued to his colleagues that the government wouldn't have sought such extraordinary powers unless absolutely necessary, this person says.Then, in November, the administration suddenly announced that it didn't consider Mr. Padilla an enemy combatant any more and would charge him in a regular federal court. The move came just two days before the government's deadline to submit briefs to the Supreme Court, which was weighing an appeal of the Fourth Circuit's September decision.A person familiar with the judge's thinking says it's evident he felt the government had pulled "the carpet out from under him." In an interview yesterday, Judge Luttig said, "I thought that it was appropriate that the Supreme Court would have the final review of the case."A person familiar with the judge's thinking says it's evident he felt the government had pulled "the carpet out from under him." In an interview yesterday, Judge Luttig said, "I thought that it was appropriate that the Supreme Court would have the final review of the case."Attorney General Gonzales offered no explanation for the move, but critics accused the government of gaming the court system. By making the Supreme Court appeal moot, the government could avoid a possible reversal at the nation's highest court while preserving the favorable Fourth Circuit ruling.Instead of granting what the government considered a pro forma request to transfer Mr. Padilla to civilian custody, Judge Luttig ordered the parties to submit arguments over the question. On Dec. 21, Judge Luttig delivered a judicial bombshell: a carefully worded order refusing to move Mr. Padilla until the Supreme Court decided what to do. The order all but accused the Bush administration of misconduct. [Emphasis mine]
You know you are in trouble when the Judge deemed "mini-Scalia" is throwing bombshells at you and accusing your administration of misconduct.But this is just another example of prominent conservatives outraged at the ideological bankruptcy of the Bush administration. Perhaps a tax-cut will smooth things over? Yeah, those always make the base and the country happy, not like the rest of this governance stuff.