Damn the Torpedoes: A Pitch for Justice Luttig.

the advantage of Luttig over all others really is a sort of jovial toughness combined with deep familiarity with D.C. thrust and parry.

Luttig is tough and he can dish it back at him. He's brilliant. He's young.

He's issued many opinions that would make the Rats instantly lose their minds. He would be demonized. It would make being borked look like the Judy Miller get-out-of-jail/get a Massage Manicure and Martini routine.

But he's tough enough and smart enough to make it through. IF WE HAVE HIS BACK.

If Antonin Scalia decides to leave...Luttig is the perfect choice to succeed him. But he shouldn't be nominated for this vacancy, given the political realities.

I gotta tell you, FRiend, this sort of self-defeating attitude is what got us the Harriet Miers debacle to begin with. I honestly believe, now more that ever, that the President should nominate Luttig, McConnell, or whoever (Luttig is my favorite, for what that's worth) and just calmly lay out the case directly to the American people for his nominee's qualifications, for the nominee's judicial philosophy, and for the President's authority to nominate. We can win this fight, I have no doubt, so long as the nominee is supremely well-qualified. Michael Luttig is so.

But he shouldn't be nominated for this vacancy, given the political realities.

Political realities? Yes what are the political realities, today.

Think of the barrage that we've seen over the past three weeks by conservatives? Now imagine yourself a red-state RINO or red-state Democrat in the senate.

Also, think back to the reaction both Lindsey Graham and the cryer from Ohio suffered when they made that deal on the judges.

The political realities have changed.

Let's see we have 55 senators & just won an election on appointing more Scalia's. The majority of the country are with us on the issues. We have two "RIGHT WING EXTREMISTS" on the SCOTUS right now, and the sky hasn't fallen.

Yet, the chicken-littles and RINOs tell us not to nominate someone too "Extreme" because it isn't "political possible."

When we've TRIED and FAILED then I'll listen to them.

Didn't these people every listen to their Mom's?

You can't win if you don't try AND winners never quit and quitters never win AND if at first you don't succeed try, and try again.

More from Hugh:

"UPDATE #1:

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.""

http://hughhewitt.com/archives/2005/10/23-week/index.php#a000403

You're correct on one point: Michael Luttig is a brilliant legal mind who would elevate the Supreme Court regardless of who he succeeds. But, given the politicalization of confirmation hearings and O'Conner's place on the Court's ideological spectrum, political reality is something we have to face, unfortunate as that is.

Finding a nominee who's both a Constitutionalist conservative and confirmable is not mutually exclusive. Two judges who would fill that bill are Federal Judges Diane Sykes and Alice Batchelder. They could be acceptable to the conservative base without inciting the left and their lamestream media allies.

By the way, I expect that there will be at least one more vacancy on the Court during Bush's Presidency. Given the ages of the Justices, it's a very real possibility. The devout Freepers should pray for more voluntary vacancies.

But he shouldn't be nominated for this vacancy, given the political realities.

What realities are those?

That seven of the last ten Presidential elections have been won by candidates promising to nominate constitutionalists to the Supreme Court?

That the Congress has been controlled by a party promising the same for nine of the last eleven years?

That in Senate races where it was an issue, Republicans had a decided advantage, even to the point of running Little Tom's sorry ass out of town?

That if the RAT-RINO majority rejects Luttig, and then McConnell, then Jones, then Estrada, then Brown, and then Williams that some of them will be in the private sector after 2006?

Just what exactly are you talking about?

From Hugh:

"UPDATE #2

A pre-emptive cyber-slamming of Judge Luttig is underway in the comments at UnderneathTheirRobes and in the comments section of ConfirmThem.com. 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."

http://hughhewitt.com/archives/2005/10/23-week/index.php#a000403

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