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Damn the Torpedoes: A Pitch for Justice Luttig.

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The encouraging news about the new short list indicates that the president is willing to run the opinions gauntlet, a preview of which we received in the attention paid my “hapless toad” case during the Roberts’ hearings. Chief Justice Roberts only had a couple of years worth of opinions, though, so the distortion level we saw in September was significantly less than what we will witness when a long-serving nominee emerges. I have long thought that this was the single biggest obstacle to a set of candidates moving to the top. Opinions are often difficult to explain to laymen, easily distorted by opponents, and mangled –intentionally or otherwise– by media.

Both Judges Alito and Luttig (and others) have a large set of drawers full of opinions they issued, and these will all be on the table if either man is nominated. The advantage of a McConnell over a Luttig was simply skipping this parsing, but the advantage of Luttig over all others is a sort of jovial toughness combined with deep familiarity with D.C. thrust and parry.

There are also the factors of age –51– which would promote Judge Luttig over most others, and his long and close friendship with the new Chief Justice –which I think would be a significant advantage short and long term.

But it is really temperment that gives Luttig a special attraction. Both the Chief Justice and Judge Luttig are proteges of former White House Counsel Fred Fielding, whom I have never seen perplexed or perturbed, even during his time on the 9/11 Commission when things were getting dicey with his fellow commissioners. Fielding’s aplomb has been absorbed by both the Chief Justice and Judge Luttig. It is a marvelous quality in a witness having to listen to Patrick Leahy, Joe Biden etc go on for hours and hours.

The fact that Luttig has been around the D.C. wars for literally decades has two other significant advanatges.

First, he knows walking in what is coming and he will not flinch. In fact, he will smile throughout. Nothing will surprise him.

Second, he has friends on the other side of the aisle –good friends, and help unlooked for could arrive early and perhaps even often in the process.

The Farragut Option. If the president introduces Judge Luttig as the nominee, there will be no doubt about getting the band back together.


Judge Luttig has judicial courage. Look at this Nat Hentoff column on a Luttig opinion in a case opening a publisher to civil liability for publishing an assassin’s manual.

And on the Global War on Terror, Luttig’s opinions in the Hamdi cases (where he dissented) and in Padilla this summer should give the president confidence that this justice would fully understand the war, and the need for the SCOTUS to move very carefully through those decisions related to it. I believe the president’s concern over SCOTUS review of GWOT-related cases in large part accounted for his nomination of Ms. Miers. Judge Luttig has been a model of informed deference to the executive on war issues, and of the implications of various rulings. From one of the Hamdi rulings by Judge Luttig, in this instance his dissent from a denial for rehearing en banc:

But as the panel disowned its promise to the detainee to provide him meaningful judicial review, so also did it disown its promise to the Executive to accord him the substantial deference to which he is constitutionally entitled for his wartime decisions as to who constitute enemies of the United States. The panel promised the Executive that the Judiciary would not sit in full review of his judgments as to who is an enemy combatant of the United States, but it adopted a rule that will henceforth do just that, cast the Judiciary as ultimate arbiter, in each and every instance, of whether the Executive has properly so classified a detainee.

Upon a moment’s reflection, it is apparent that the rule of law that
was fashioned by the panel professedly in the name of deference to
the Executive, and that now binds us, is, in application, a rule of no
deference at all. For counsel must now be provided and judicial
review had of the Executive’s determination that one is an enemy
combatant in every instance in which the petitioner but refrains from
affirmative concession that he was seized in a foreign combat zone.
The Executive’s undeniably important interests in the prohibition of
access to detained enemy combatants for reasons of national security
and in the conduct of war free from fear that it will be summoned to
court to answer to the Judiciary for its enemy designations, thus, are
uncomfortably protected by little more than the hope (vain after the
court’s opinion, if not before) that the habeas petitioner will gratuitously or foolishly concede that his seizure occurred in a foreign zone of combat.


A pre-emptive cyber-slamming of Judge Luttig is underway in the comments at UnderneathTheirRobes and in the comments section of The ripple effect of anonymous commentators is quite small –as befits their honor– but just in case you were wondering about Judge Luttig’s concern for precedent, read his dissent in Gibbs v. Babbitt, where he writes about the SCOTUS cases on the limits of the Commerce Clause in regard to the the federal Endangered Species Act:

The majority of the Supreme Court in Lopez and Morrison has left no doubt, however, that the interpretation of this clause of the Constitution, no less so than any other, must ultimately rest not with the political branches, but with the judiciary. See Lopez, 514 U.S. 549, 557 n.2 (“[W]hether particular operations affect interstate commerce sufficiently to come under the constitutional power of Congress to regulate them is ultimately a judicial rather than a legislative question, and can be settled finally only by this Court.”) (quoting Heart of Atlanta Motel v. United States, 379 U.S. 241, 273 (1964) (Black, J., concurring)); Morrison, 2000 WL 574361, at *10 n.7 (“Departing from their parliamentary past, the Framers adopted a written Constitution that further divided authority at the federal level so that the Constitution’s provisions would not be defined solely by the political branches nor the scope of legislative power limited only by public opinion and the legislature’s self-restraint. See, e.g., Marbury v. Madison, 1 Cranch 137, 176 (1803) (Marshall, C.J.).”).

Accordingly, I would faithfully apply in this case the Supreme
Court’s landmark decisions in Lopez and Morrison, as I would in any
other case. The affirmative reach and the negative limits of the Commerce Clause do not wax and wane depending upon the subject matter
of the particular legislation under challenge.

Judge Luttig has faithfully applied the rulings of SCOTUS in all situations. Senate critics like Slow Joe Biden will not be able to accuse him of inconsistent application of higher court precedents. Rather, as a circuit court judge, he has faithfully applied the law.

“Accordingly, I would faithfully apply in this case the Supreme
Court’s landmark decisions…” is the best testament to an appeals court judge. Not only is it what they should do, it is what they must do. To faithfully apply the law is the job of the appellate judge. Judge Luttig –and Judges Alito and Jones– have done so over many years. The left and their occasional allies on right cannot be indulged criticisms based on their desire for, in the former case, a particular result, or in the latter, a crusade rather than the sober attachment to the rule of law.


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