Thursday, May 11, 2006

Who lost luttig? Cont'd   [Jonah Goldberg]

A contrary view from a reader:

 

Jonah,

I was a Fourth Circuit clerk and been a fan of your work for years, but I really think it's wide of the mark to attribute Luttig's departure to the Padilla case. It's far more likely that it was the lack of a Supreme Court nomination that accounted for the departure.

 

I also don't think conservatives have paid enough attention to how embarrassingly wrong he was in his opinion refusing to transfer Padilla, regardless of what we think as a policy matter of the decision to charge him in the civilian system (a decision I think was ill-advised). There are good reasons to wonder whether someone who would write such an opinion should have been nominated to the Supreme Court.

 

The Padilla opinion might have made a good newspaper op-ed, but it was reversed unanimously by the Supreme Court for the very good reason that no legal basis exists for the judiciary to force the President to keep someone in military custody. Luttig never identified any basis for this totally novel judicial power. Padilla didn't want to be in military custody, the President didn't want to keep him in military custody, and that should have been the end of the matter, as Judge Traxler, a non-activist conservative not prone to placing written tantrums in the Federal Reports, recognized, as did every Justice of the Supreme Court. There's nothing noble or admirable about going off the rails and issuing an order not supported by any identifiable provision of law, that also isn't sought by either of the parties before the court. We don't have a European system of inquisitorial justice where judges are entrepeneurs who can roam widely and "do justice" in that fashion, and the worst possible place to start with such an approach would be in the context of the President's power as Commander in Chief over military detentions.

 

Please don't use my name in any reproduction of these comments.

 

Best regards,

05/11 01:23 PMShare