Luttig Leaves the Bench

'Tis passing strange -- do you suppose he's been to a few poker parites he shouldn't have attended? Of the conservatives that have been mentioned as front-runners for SCOTUS, he was one of the few that didn't scare me, so it's not only surprising but a mite troubling.

The fact that he has resigned from the bench doesn't mean he would be restricted from a spot on the Supreme Court, does it?

Treban - No. Current position is not a qualifier for nomination to the bench. You don't even need to be a lawyer to get appointed.

No, it doesn't mean he would be restricted from getting such a nomination, but it likely reduces his chances considerably. Traditionally, lawyers in private practice do not get nominations these days. Not out of the question, though.

The Wall Street Journal this morning has a page-one piece on Luttig's departure. Since it's subscription-only, I'll post a few grafss and e-mail the whole thing to Ed.

McLEAN, Va. -- 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. 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. 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.

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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.

"The government's abrupt change in course" appeared designed "to avoid consideration of our decision by the Supreme Court," Judge Luttig wrote. The government's actions suggested that "Padilla may have been held for these years . . . by mistake" and, even worse, that the government's legal positions "can, in the end, yield to expediency." Such tactics, Judge Luttig warned, could exact a "substantial cost to the government's credibility before the courts."

A furious Bush administration asked the Supreme Court to overrule the Fourth Circuit. The ruling "second guesses and usurps both the president's commander-in-chief authority and the Executive's prosecutorial discretion in a manner inconsistent with bedrock principles of separation of powers," Mr. Clement, the solicitor general, wrote.

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People familiar with Judge Luttig's thinking say he knew his condemnation of the administration 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."

I hope that doesn't exceed fair use.

Ah, thanks for that, Pieter. I hadn't even considered that issue. I recall at the time reading that Luttig was very angry (and rightly so) about the administration trying to avoid judicial review. The Supreme Court ultimately did allow the charges to go forward and Padilla to be transferred, but that's not the last of it. Many speculate that the Court wanted to wait until it made its way back up to really take a whack at the administration's position. But this may explain why Luttig left. Even if he hadn't gotten discouraged by what the administration did, he may well have recognized that his position in the case took him off any list for a future nomination and that may have sapped his desire to stay on the bench. That makes sense.