Wednesday, May 10, 2006


Judge Luttig Resigns

The Washington Post is reporting that Judge Michael Luttig is resigning to take a position with Boeing. Let the speculation begin: J. Michael Luttig Resigns From Appeals Court

This is not good news: Judge Luttig is a smart, persuasive voice on the Fourth Circuit and we can only hope to do as well with his replacement. Post writer Fred Barbash hints there may be more to this story:

“Luttig, who sits on the Richmond-based U.S. Court of Appeals for the 4th Circuit, wrote the most important appellate decision yet in support of the Bush administration's powers to detain individuals without recourse to ordinary legal protections.”

That would be Padilla v. Hanft in which the Fourth Circuit basically upheld the federal government’s (not just the Bush Administration) authority to detain Padilla as an “enemy combatant” despite Mr. Padilla’s status as a U.S. citizen. (Hanft is the Commander of the consolidated Naval Brig where Padilla was being held) Padilla v. Hanft

“However, he had a significant falling-out with the Bush Justice Department earlier this year when he protested, in a follow-up opinion, what he suggested was the administration's inappropriate manipulation of the legal system in order to avoid a further Supreme Court test of the president's wartime authority.”

That would be Padilla v. Hanft II. After winning the first go around, the government shifted tactics and attempted to transfer Padilla to federal civilian law enforcement authorities in Florida. To which Judge Luttig replied:

“Because we believe that the transfer of Padilla and the withdrawal of our opinion at the government’s request while the Supreme Court is reviewing this court’s decision of September 9 would compound what is, in the absence of explanation, at least an appearance that the government may be attempting to avoid consideration of our decision by the Supreme Court, and also because we believe that this case presents an issue of such especial national importance as to warrant final consideration by that court, even if only by denial of further review, we deny both the motion and suggestion.“ Padilla v. Hanft II (and in April 2006, the Supreme Court declined to take the case up anyway)

Mr. Barbash further suggests that “[h]is public thrashing of the Justice Department was known to have been deeply upsetting to political appointees in the department.”

Now there is no other way to spin Padilla II but as a loss for DOJ. However, that does not translate into a “significant falling out” with DOJ. I say this because Judge Luttig, as a Federal Circuit Judge, does not have the kind of ongoing relationship with DOJ that can be ‘fallen out of’. Instead, this characterization seems to be more of a case of Mr. Barbash observing two parties that he lumps together under the conservative banner, openly disagreeing. He extrapolates from this a severe “falling out”. I know to the likes of Fred Barbash and others at the Post that all of us conservatives think and act alike but really, we can disagree…and do so without thinking ill of each other.

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