July 4, 2007

"That judicial decision was entirely political.... that was entirely improper, because judges are not allowed to act politically..."

That's how Alan Dershowitz writes about the D.C. Circuit panel that denied Libby release pending appeal. (The panel briefly noted that Libby failed to show he had a substantial issue for appeal.) Orin Kerr makes short work of Dershowitz:
I love Dershowitz's reason why the two-sentence order shows that these two very conservative judges ["Federalist Society favorite David Sentelle and solid conservative Karen LeCraft Henderson"] (together with Judge Tatel) acted out of partisan political animosity against Bush: Libby's arguments were so strong that it's the only explanation. Of course.

17 comments:

Andy O said...
This comment has been removed by the author.
Invisible Man said...

Good for Orin to show the right-wing hysteria that is its quest to rationalize their defense of Libby. Dershowitz's comments dovetail nicely with Mark Levin of the Corner who said that Libby would have been a "political prisoner". This buffoonery only demonstrates how shallow and corrupt much of the right has become. Again, a Bush-appointed Prosecutor indicted him, a jury of Libby's peers who actually liked the guy convicted him, while a Bush-appointed judge sentenced him, and two Bush-appointed judges denied his appeal, but of course this was a partisan witch-hunt right?

Oh, and just to parry the silly Marc Rich arguments before the start, good luck finding non-Clinton administration officials who defended the pardon, while most of the Right acts as if Libby was Nelson Mandela.

Simon said...

This is a person who, on the day the late Chief Justice died, launched a vicious attack on him in the media while the body was yet warm. I start from the assumption that he is a terrible human being who should be ignored.

...Which makes it all the more painful for me to add that in this instance, he's on the right side. The issues to be raised on appeal were indeed substantial and close, and although Orin rightly lambastes Dersh for suggesting that there's no other explanation for the denial of bail pending appeal (which is ridiculous), the decision was mistaken and unfortunate. Nor is it convincing for Orin to imply that these judges could not have acted out of animosity to the Bush administration merely because they are themselves conservative - many conservatives are unhappy with the Bush administration.

JackDRipper said...

Alan Dershowitz is always predictable. Let's be clear Alan Dershowitz is a Jewish bigot who views the world as Goyim = bad, Jew = good. Except when the Jew is a self hating Jew or a Jew who lacks "chutzpah".

Libby is good because he's a Jew, was the lawyer for Jewish financial criminal Marc Rich and his career is seen by Dershowitz as being very Israeli-centric.

Dershowitz hates everything about Cheney and Republicans except the fact that they are surrounded by a cabal of Likud party activists misleadingly self labeled as "neo-conservatives".

Too many jims said...

Nor is it convincing for Orin to imply that these judges could not have acted out of animosity to the Bush administration merely because they are themselves conservative - many conservatives are unhappy with the Bush administration.

I agree. Nor is it convincing to imply that Roberts/Alito/Thomas/Scalia could not have acted out of animosity towards their political enemies in reaching each and every one of their decisions this term.

Good judges (hey don't "conservatives" usually say the good ones are favorites of Federalist Society members?) apply law to the facts presented. I don't know why we should impugn their integrity simply because "many conservatives are unhappy with the Bush administration."

Let me ask you this, if the Supreme Court decides the Libby case on a 5-4 vote, is it a result of "partisan political animosity." Or is it impossible to say until you know which side Scalia is on?

The Exalted said...

dershowitz is a serial idiot. there was no "close question" at all, the amicus brief he signed on to was a complete joke.

Simon said...

Jim,
Depending on how sarcastically your post was intended, I should reiterate that didn't suggest that these judges did act out of animosity to the administration, only that it isn't much more credible for Orin to say that they couldn't have (because they're conservatives) than it was for Dersh to say that they must have (because the appeal is so obviously, in his view, meritorious).

Presuming that Libby appeals the issue that the amicus brief filed with the district court urged, the case will center on the appointment of Fitzgerald. It will become irrelevant whether Libby was guilty or innocent: the case will be about whether legal authority to indict Libby existed in the first place. A defect in the appointment of an officer leaves them without power to act, and all actions taken under color of authority later found absent are void. As the amicus brief argues - and I need not decide here and now whether it ultimately does so persuasively - there is at least a close question that the appointment violated Article II, supplying such a defect in the appointment.

One must suspect that formalist, structural arguments will appeal to Justice Scalia, regardless of whom they happen to protect, but even if they do not, they appeal to me. If we should ultimately disagree on this case, it would not be the first time we've disagreed. It's not necessary to agree with someone on everything to respect them.

Mr.Murder said...

Is our children learning?

Most of the time pardons are saved for the exit from office. This was not the case. Libby is a new standard of protection for criminal acts.

He was so looking forward to being on an ass pyramid. Oh, that's Iraqi jails, and our troops and contractors like John Israel...

Simon said...

Mr.Murder said...
"Most of the time pardons are saved for the exit from office. This was not the case. Libby is a new standard of protection for criminal acts."

It seems to me that John Stodder and various other commenters have the right approach - the problem isn't so much that the President intervened in this case, it's that the President doesn't intervene in other cases more often.

Tully said...

Like with the long-missing veto pen, the commutation only stands out because the power has been used so infrequently.

Mr.Murder said...

You mean intervening in four counts for 33 months when others get 33 months for one count?

I suppose a Vietnam/Desert Storm veteran doesn't really rise to the standing of Libby.

Libby went to college for ten years during the high water marks of 'Nam.

Too many jims said...

Simon said...
it isn't much more credible for Orin to say that they couldn't have [acted out of animosity toward the administration](because they're conservatives)"


Can you please point me to where Orin Kerr said that the judges couldn't have been acting out of such animosity?

Simon said...

Jim, he says that he "love[s] Dershowitz's reason why the two-sentence order shows that these two very conservative judges ... acted out of partisan political animosity against Bush," and the heavy-lifting in his cutting down of Dersh's position is done by this observation of the political orientation of the judges. Implicitly, the inclusion of this observation says "look who he's accusing of animosity against Bush - isn't it ridiculous?"

Too many jims said...

Simon,

You may have inferred that from what Prof. Kerr wrote but I do not think that sentiment is implicit in what he wrote. In fact, my reading of it is that it is implicit that Prof. Kerr believes that political bias may be a reason for the decision. Most telling for me is that he chose to emphasize the phrase: " it's the only explanation".

Paul Zrimsek said...

Dershowitz is the Steve Simels of law professors.

Simon said...

Jim,
Well, we'll have to agree to differ. In any event, it certainly wasn't intended as a slam against Orin, who I like a great deal, just a commentary on his post. It's a side issue. The more important issues are that Dersh is a world-class prick, but in this case, to the extent he's advancing the legal theory of the amicus brief and its merits, I think he's a prick who's exaggerating rather than a prick who's completely off in a world of his own.

Too many jims said...

Simon,

Agreeing to disagree is fine by me. That said, I would commend Prof. Kerr's latest "dialogue" on the subject. He makes the points I was trying to make better than I was able to(which is not surprising).