Judge (make that "Former Judge") Michael Luttig sends a pretty strong message to George.

I was a bit late in seeing this news, but even if I had seen it in a more timely manner, I would have been surprised.

On July 2, 2005, I described Luttig as follows:

former clerk for Scalia (on D.C. Circuit Court of Appeals) and Chief Justice Burger, judge on 4th Circuit Court of Appeals since 1991.

That post was my effort at guessing who would take Sandra Day O'Connor's seat on the Supreme Court, and I ended up focusing on the possible nominees with the closest connections to Bush. Luttig was not in that group, so I wrote no more about him than the above excerpt. By the way, I did the same for John Roberts--so much for insightful analysis.

It is time to write more about Judge Luttig, in large part because he is no longer a judge. Luttig resigned his position on the 4th Circuit as of May 10, 2006. As a general observation, it is very rare for any federal judge to resign. There is something attractive about having a good-paying gig guaranteed to last for a lifetime, and very few people would give that up, especially at the age of 51. Any federal judge who resigns must have a strong reason for doing so.

It appears that Luttig did have a strong reason for voluntarily leaving the bench, and I don't think it was money, even though that was the reason publicly given by Luttig and some of his friends. Luttig is going to be a senior vice president and general counsel for Boeing. While Luttig's pay at Boeing has not been disclosed, chances are it will be substantially greater than his $171,800 salary as a judge. Luttig's friends said that "the financial lure of the Boeing job and the greater ability to pay for his children's college education...were key to his resignation." So, more money does seem a likely reason for Luttig's resignation, but probably not the real reason. I also do not think that Luttig resigned because he was passed over twice recently for the Supreme Court (the places now held by Roberts and Alito), although that was the reason given by the Bush administration in response to Luttig's December 2005 ruling in the Padilla case discussed below.

It is likely that the real reasons are that Luttig was basically stabbed in the back by the Bush administration and that the administration is manipulating the courts for purely political purposes. The 4th Circuit is the Court of Appeals which heard the case of Jose Padilla, the alleged American Al Qaeda who was planning to detonate a "dirty bomb." The opinion of the 4th Circuit upheld the Bush administration's arguments in a big way, and the author of the opinion was Luttig. In fact, up to that point, Luttig had ruled in favor of the Bush administration's positions on the war on terror every chance he had.

Before discussing those rulings, Luttig's background and reputation should be examined. As reported by the Wall Street Journal, Luttig seved in both the Reagan and Bush 41 administrations. Under Bush 41, Luttig became the head of the Justice Department's Office of Legal Counsel and was the administration's point man for the successful Supreme Court appointments of David Souter and Clarence Thomas. The WSJ describes Luttig as "part of a group of conservative activists eager to remake a judiciary they considered dominated by liberals." He was a significant part of that effort once he made it to the 4th Circuit in 1991, where he came to be known as "the most conservative judge on the most conservative federal appeals court."

Luttig also became one of the Bush administration's best judicial friends in the war on terror. According to this Washington Post article discussing Luttig's decision in the Padilla case in September of last year, "Luttig has issued strongly pro-government decisions in other terrorism cases since Sept. 11, including in the prosecution of convicted conspirator Zacarias Moussaoui." Another one of those decisions came in the case of U.S.-born Yaser Hamdi, who was captured in Afghanistan and ruled an enemy combatant by Luttig (per the WSJ).

And then came the Padilla case. Padilla was held for three and a half years without ever being formally charged with anything. The Bush administration claimed he was an "enemy combatant" that could be legally be held indefinitely in accordance with military law and the President's inherent powers. The matter was originally heard in New York, where the more liberal 2d Circuit Court of Appeals ruled that the detention was unlawful. The government appealed that decision to the Supremes, who ruled that the case should have been heard in South Carolina (and thus avoided making a ruling on whether the detention was lawful), meaning the case would not be reviewed by the 2d Circuit but rather by the very conservative 4th Circuit. The trial court in South Carolina also ruled that the detention was illegal, but then that decision was appealled to the 4th Circuit, and Luttig wrote the opinion which reversed the trial court and gave the Bush administration everything it could have hoped for by "declaring that the president's powers to detain those he considered enemy combatants apply anywhere in the world, including the U.S."

Luttig basically put his reputation on the line for the Bush administration, and then he got screwed. Two days before the government's brief to the Supremes was due, the Bush administration--fearing that it would lose--suddenly decided to charge Padilla with a lesser crime than what had been alleged in all prior court proceedings and have Padilla treated as any civilian. In other words, when faced with the possibility of losing, the Bush administration dropped ALL of the arguments it had made for over three years. Every reason given by the Bush administration as to why Padilla was a dangerous terrorist who deserved to be held indefinitely without any charges or any hearing was tossed away and disavowed.

Luttig, to put it mildly, was pissed. The government filed a routine request to have Padilla transferred to civilian custody, and instead of simply granting it, Luttig ordered everyone to file briefs on the issue. On December 21, 2005, Luttig issued his opinion, and it ripped the government a new one. There are many aspects of Luttig's opinion which should be discussed (and have been in other places, one of which is here), and I will do that in a subsequent post, but for now consider the following.

What we have here is a judge who believed in, supported, and bolstered the Bush administration's assertion of power in the war on terror, only to find out that the Bush administration basically views the judicial system as its plaything. To put the matter in terms utilized over and over by the administration and the GOP to counter any criticism, the Bush administration used the courts for political purposes. It politicized the judicial system. True conservatives and anyone who professes that courts are first and foremost supposed to uphold the Constitution would not condone what the Bush administration did. And indeed, Luttig told the administration that in clear terms.

Kevin Drum summed up Luttig's December opinion:

In other words, if the government's own actions make it clear that they consider the war on terror to be little more than a game designed to expand presidential power, how can they expect anyone else to take it seriously either?

It's a good question. No wonder Luttig was pissed. He was one of the ones who thought the Bush administration took this stuff seriously.

Luttig's resignation further highlights that Bush, his administration, and much of the GOP establishment are not true conservative, most of them are hypocrites (for blatantly using the judiciary for political purposes), and that they are almost exclusively interested in keeping power. Luttig's resignation seems to send a message to Bush that at least Luttig has seen through all the bullshit. I just hope more people start doing the same.