BUSH V. LUTTIG

Bush may yet regret the decision to attack the U.S. Circuit Court of Appeals for the 4th Circuit for its decision in the Jose Padilla case. The opinion was written by Judge Michael Luttig, a darling of conservatives and one of their favorite candidates to ascend to the Supreme Court.

Judge Luttig, who has impeccable conservative credentials, has backed the DOJ in previous Padilla actions, and has decried "judicial activism" with the worst of them, questioned the government's motives in the Padilla case:

In its ruling last week, the 4th Circuit questioned the government's changing rationale for Padilla's detention since the September decision, because the criminal charges do not mention a dirty bomb plot or any attack inside the United States. The court said prosecutors had left the appearance that they were trying to avoid Supreme Court review of Padilla's case and suggested that Padilla might have been "held for these years, even if justifiably, by mistake."

The Justice Department, on behalf of Dubya, fired back:

The Justice Department brief said the 4th Circuit had mischaracterized the events of Padilla's incarceration and engaged in "an unwarranted attack on the exercise of Executive discretion." Prosecutors accused the court of going so far as to "usurp" Bush's authority as the nation's commander-in-chief and his government's "prosecutorial discretion."

A protege of Antonin Scalia (Luttig clerked for him) and Clarence Thomas, Luttig is considered a "staunch federalist" in their mode. That he should brave the administration's displeasure in such a manner and matter will surely raise questions about Fearless Leader's actions in some, more thoughtful, conservatives.

Tags: Bush, Judge Michael Luttig, Jose Padilla