Dispatches from the Creation Wars

Sandefur links to this article by Harvey Silvergate in Reason about J. Michael Luttig’s resignation from the 4th Circuit Court of Appeals to become the chief counsel for Boeing. That article in turn refers to a piece in the Wall Street Journal that is no longer available, unfortunately. Both articles argue that Luttig’s resignation was prompted by Luttig’s anger at the administration’s handling of the Padilla case. I’ll post a long excerpt below the fold, beginning with Silvergate’s explanation of the Padilla situation and how Luttig was involved:

Simply put, after years of helping legitimize the legal legerdemain of the administration and the Department of Justice, Luttig got burned by his own allies. Back in 2002, Jose Padilla was arrested at Chicago’s O’Hare Airport. When brought to New York and held as a “material witness,” Padilla filed his initial petition seeking to vacate the material witness warrant, whereupon President Bush reclassified Padilla as an “enemy combatant” and transferred him to military custody at a naval brig in Charleston, South Carolina. At that point, Padilla reframed his petition in New York to challenge the extraordinary claim that the president has the authority to hold an American citizen arrested on U.S. soil, indefinitely and without trial. It was clearly the government’s realization that it could lose in the moderate Court of Appeals for the Second Circuit, which has jurisdiction over New York, that caused the Department of Justice to surreptitiously transfer Padilla, with the challenge to the president’s authority still pending in New York, to Charleston, which falls under the Fourth Circuit’s jurisdiction.

In 2004, despite a Second Circuit ruling declaring that Padilla still fell under its jurisdiction, the Supreme Court, by a narrow 5-4 vote, allowed the administration to get away with this blatant forum shopping. Padilla was told that he would have to re-file his challenge in South Carolina. The Fourth Circuit thus was handed the opportunity to write an opinion of historic importance, while the administration had the benefit of the friendliest of venues. Luttig didn’t disappoint. His September 9, 2005 opinion for the Fourth Circuit panel acceded fully to the administration’s claim. The chief executive, Luttig proclaimed, could order the arrest on American soil and indefinite detention, with neither charge nor trial, of an American citizen. Simply by designating any detainee an “enemy combatant,” the President could, in his sole and unreviewable discretion, effectively “disappear” anyone at any time.

Civil libertarians criticized the Fourth Circuit for investing so much power not just in one branch, but in one man, portending a radical diminution of liberty. They stressed that, under Luttig’s decision, Padilla could not take advantage of the Constitution’s guarantee, accorded all criminal defendants, of a public trial by indictment and jury in a court of law governed by Article III and relevant provisions of the Bill of Rights. Yet, from the administration’s viewpoint, Luttig’s opinion could not have been better. A holding that a citizen arrested on American soil had no more rights than those accorded a terrorist captured on a foreign battlefield gave the president unprecedented power.

Padilla requested Supreme Court review of the Fourth Circuit’s opinion. Just days before the high court was expected to act on Padilla’s petition, however, the DOJ bit the hand that fed it. Federal prosecutors indicted, in criminal court, the former enemy combatant. This reversal flew in the face of the government’s earlier claim that its evidence was so sensitive it had to be dealt with outside the criminal justice system. Padilla would be given a trial after all. Suddenly everything the government had been telling the Fourth Circuit about the exigencies that made a public trial of Padilla unsafe for the republic had been cast into grave doubt.

Luttig, realizing that he had been taken for a ride, furiously rebelled from his role as the administration’s enabler. Rejecting the DOJ’s routine request that Padilla be transferred to the criminal justice system, Luttig’s scathing December 21, 2005 opinion suggested that the government had disingenuously and manipulatively tried to evade Supreme Court review of its Fourth Circuit victory. People “familiar with Judge Luttig’s thinking” anonymously told the Journal that his condemnation of the administration’s tactics grew out of a concern that judges were expected to line up either behind or against the administration, rather than follow the law.

So far, so good. Luttig wasn’t the only person to notice the administration’s hypocrisy in this matter, of course, but his written reaction was unusually pointed for a sitting judge, especially one who was still regarded as a likely Supreme Court nominee. The opinion he filed was exceptionally blunt. And the administration responded by doing what it usually does to those who dare to challenge it’s claims of unbridled authority – they attacked him.

Meanwhile, unnamed pro-administration sources launched an unseemly counterattack on the judge who had theretofore been their staunchest ally. Luttig, his new detractors charged, had simply thrown a judicial tantrum because he was passed over three times for appointment to the Supreme Court, his life’s ambition.

Whether or not there’s any truth in that–and Luttig himself assured Legal Times that there was “nothing at all” to these speculations–Luttig certainly had reasons to throw a tantrum. His Padilla ruling inflicted great damage to the rule of law in this country, and we can wish him well at Boeing and still be glad he’s gone from the federal bench. But it’s revealing that even a judge so deferential to executive power could no longer tolerate the Bush administration’s arrogance and lawlessness–not to mention the incivility of leaving a key judicial ally twisting in the wind.

Call it conservative cannibalism.

Comments

  1. #1 Ed Darrell
    May 20, 2006

    This post is just esoteric enough to stifle the “hit reply” urge of most of us, eh?

    Fascinating story if true, but I’d not call it cannibalism. As related, it sounds as if Luttig had been doing the bidding of his fellow travelers, and got smitten by conscience after the administration walked all over his carefully-crafted opinion.

    That he’s going to work for Boeing, not exactly a Bush-Cheney-unfriendly place, further calls into question the issues of a split between conservative camps.

    It is my observation that through-and-through conservatives tend not to stick around in federal appointments when they cannot advance their philosophy, and they are disappointed. But then, those who leave federal service, carp back at it from the conservative side, forever more. Think Bork. Think Bill Bennett. Think George Will.

    Ultimately, I think it likely that Judge Luttig has two bright kids bound for college, and realizes that there is a lot of gold to grab if he grabs now. If Bush gets another Supreme Court appointment, private business would only polish Luttig’s resume (over Michael McConnell, for example) in Bush eyes.

    Don’t read too much into it.

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