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Will Roberts Sit in Judgment of…Himself?

New Chief Justice John Roberts may be called upon to sit in judgment of one of his own appeals court decisions. In Hamden v. Rumsfeld, Roberts previously participated as one of three appeals court judges reviewing the matter.

Readers here will no doubt recall that it was this case that brought a lot of ethics questions for Roberts during the confirmation process, since he was sitting in judgment of the Bush Administration at a time they were interviewing him for a job, raising a number of questions about the fact that he did not recuse himself from the matter due to a potential conflict of interest and appearance of impropriety.

Chief Justice John Roberts, as an appeals court judge, joined a summer ruling against Salim Ahmed Hamdan. He did not participate in Monday’s action, which put him in the difficult situation of sitting in judgment of one of his own rulings.

The court’s intervention piles more woes on the Bush administration, which has already suffered one set of losses at the Supreme Court and has been battered by international criticism of its detention policies.

“I think it’s a black eye for the Bush administration. This opens a Pandora’s box,” said Michael Greenberger, a Justice Department attorney in the Clinton administration and law professor at the University of Maryland.

This case will be a tough decision for both Roberts and for Hamdan’s legal representatives, who will have to decide whether or not to ask Roberts to participate in the matter to avoid the possibility of a 4-4 tie or whether to chance it.

In 2004 justices took up the first round of cases stemming from the government’s war on terrorism. Justice Sandra Day O’Connor, who is retiring, wrote in one case that “a state of war is not a blank check for the president when it comes to the rights of the nation’s citizens.”

Arguments in the case have been set for next Spring, which presumably would then include Justice O’Connor’s replacement, rather than O’Connor herself. This could mean that Samuel Alito, the Preznit’s nominee, would be seated if his confirmation goes smoothly — which would presumably not be good news for Hamdan, given Alito’s deference to government in past rulings.

Hamdan’s lawyer, Georgetown University professor Neal Katyal, said in a filing that “it is a contrived system subject to change at the whim of the president.”

“With constantly shifting terms and conditions, the commissions resemble an automobile dealership instead of a legal tribunal dispensing American justice and protecting human dignity,” he wrote.

Should be a very interesting case, and one which has far reaching implications for US policies.

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com