Over at Huffington Post, Alan Dershowitz makes the case that the D.C. Circuit judges who denied Libby’s appeal — a panel that included Federalist Society favorite David Sentelle and solid conservative Karen LeCraft Henderson — are anti-Bush political hacks who only denied Libby’s appeal for partisan political reasons.
Now, I know what you’re thinking — the court’s order was only two sentences long. How could Dershowitz know what the judges were thinking? The answer seems to be that Dersh just knows. He writes:
That judicial decision was entirely political. The appellate judges had to see that Libby’s arguments on appeal were sound and strong — that under existing law he was entitled to bail pending appeal. (That is why I joined several other law professors in filing an amicus brief on this limited issue.) . . .
But the court of appeals’ judges, as well as the district court judge, wanted to force President Bush’s hand. They didn’t want to give him the luxury of being able to issue a pardon before the upcoming presidential election. Had Libby been allowed to be out on appeal, he would probably have remained free until after the election. It would then have been possible for President Bush to pardon him after the election but before he left office, as presidents often do during the lame duck hiatus. To preclude that possibility, the judges denied Libby bail pending appeal. . .
[T]hat was entirely improper, because judges are not allowed to act politically. They do act politically, of course, as evidenced by the Supreme Court’s disgracefully political decision in Bush v. Gore. But the fact that they do act politically does not make it right. It is never proper for a court to take partisan political considerations into account when seeking to administer justice in an individual case.
I love Dershowitz’s reason why the two-sentence order shows that these two very conservative judges (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.