Obama’s Constitutional Experience.

“Katyal, who has been called in by both senators, described what sounded like a typical establishment vs. insurgency split between the two. Clinton ‘comes at it a bit more from a top-down perspective,’ he said, ‘as in, “elites are likely to know what the right answer is.” She’ll likely talk to the Nobel Prize winner, but maybe not be as likely to talk to the people on the ground affected by the policies./ Obama, on the other hand, talked to Katyal for two hours when the Military Commissions Act, which sought to limit the Guantanamo detainees’ right to bring appeals in federal court, was being debated in the Senate. He wanted to know how the proposed law would play out directly for the detainees, and Katyal was representing Salim Ahmed Hamdan before the Supreme Court.“

Slate‘s Emily Bazelon examines how Obama’s years as a con law professor influence his judicial thinking. “Obama’s immersion makes the law professors in his inner circle giddy. In addition to the sweet relief of a candidate who has promised not to keep marching to the drummer of executive power, and who wants to protect rather than diminish the right to privacy, the Obama lawyer team loves their man because he goes toe to toe with them. As Harvard law professor Martha Minow puts it, ‘He has at his fingertips the whole historical context of the moments in which our Constitution has been stretched, or has been in jeopardy, and when presidents have tried to bring it back. This isn’t an afterthought for him: “Oh, I’ll go consult my lawyers.”‘” This probably goes a way toward explaining why Obama has the backing of so many anti-Gitmo lawyers.

The Lost Langley Terror Tapes.

“[H]ere’s a different thought experiment: How would the national debate over torture have changed if we’d known about the CIA tapes all along? How would our big terror trials and Supreme Court cases have played out? Yes, this is also a speculative enterprise, but it’s critical to understanding the extent of the CIA’s wrongdoing here.” In light of the recent revelation that the CIA destroyed video evidence of their abusive interogation procedures in 2005, well after they’d become relevant both in many different legal cases and in the national discussion about torture, Slate‘s Emily Bazelon and Dahlia Lithwick survey the wreckage the CIA has made of our legal process. “Video of hours of repetitive torture could have had a similarly significant impact — the truism about the power of images holds. If we are right about that — and we think we are — this evidence that has been destroyed would have fundamentally changed the legal and policy backdrop for the war on terror in ways we’ve only begun to figure out.” If nothing else, an independent counsel should be named immediately. Even given the criminality and contempt for the rule of law we’ve come to expect from this administration, this sort of thuggish, gangland behavior is shocking news.

Backcourt Violations.

“‘Conservatives got everything they could reasonably have hoped for out of the term,’ said Thomas C. Goldstein, a Washington lawyer who specializes in Supreme Court litigation.” Proving the crucial importance of the Alito-O’Connor switch (and, I’ll continue to maintain as my answer to Emily Bazelon’s line of questioning, the 2004 election), the Roberts Court flexed its muscle in depressing fashion this week, voting 5-4 (as feared) not only to gut the McCain-Feingold act in the name of “free speech” but also — seriously, no lie — to partially roll back Brown v. Board of Education. (In another well-reported case, the majority’s inordinate fear of bongs trumped this stalwart commitment to free speech.) So, if you’re keeping score, Roberts, Alito, Scalia, Thomas, and Kennedy came down like this: money good, corruption good, drug hysteria good; clean politics bad, youthful irony bad, integration bad. Oh, wonderful. Suddenly, the announcement that the Court will take a look at the Guantanamo cases doesn’t sound so appetizing. Update: Slate‘s slate of legal observers discuss.

Hearing Hamdan.

“The president’s consistent refusal to try the Guantanamo detainees before criminal courts or courts-martial leads a reasonable observer to conclude that the government’s case would fail if it were subjected to scrutiny by an impartial adjudicator. And if that is the only justification for military tribunals, it must be rejected. No one denies that the war on terror presents new challenges to the rule of law. But prosecuting someone with a crime that does not exist, before a commission that does not have rules, simply does not constitute justice under any set of circumstances.” Slate files several dispatches on the important case of Hamdan v. Rumsfeld, which the Supreme Court (without Chief Justice Roberts, who has recused himself…as should probably Scalia) will hear today. Emily Bazelon finds that GOP Senators Kyl and Graham seem to have tried to deceive the Court about the legislative history of their Detainee Treatment Act, while Ariel Lavinbuk suggests a compromise solution: the Supreme Court could “find that ‘conspiracy’ — the only charge against Hamdan — does not violate the law of war.“

Update: The Court hears the case, and it seems a majority — Scalia and Alito notwithstanding — are not amused with the Dubya administration: “Without Chief Justice John Roberts…the argument seemed lopsided against the government.” Still, as was expected to be the norm on the Roberts Court,”the outcome of the case will likely turn on moderate Justice Anthony M. Kennedy.”

Round 2: Miers.

In the early morning, Dubya chooses White House Counsel Harriet Miers as the next Supreme Court nominee. (Searching far and wide again, I see.) Well, let the vetting begin. On the plus side, the fundies seem perturbed, and she has some Dem donations in her past. On the other hand, she’s a rabid Bush loyalist, calling him “the most brilliant man she had ever met.” (Get out much?) Update: The Weekly Standard‘s Bill Kristol is disappointed, depressed, and demoralized by the Miers pick, while Legal Times was already unenthused about her. Update 2: Slate‘s Dahlia Lithwick and Emily Bazelon are similarly nonplussed: “Can anyone really imagine that she’d be the nominee if she weren’t a woman and the president’s friend and loyal adviser? Cronyism and affirmative action: It’s a nasty mix.“

Goring Alberto.

“As lawyer for the governor in the Texas Statehouse from 1994 to 1997, Gonzales was responsible for advising Bush about whether he should delay the death sentences of capital murderers…As my colleague Phillip Carter has written, Gonzales’ work on this life-or-death task ‘would have barely earned a passing grade in law school.'” Slate‘s Emily Bazelon argues that rabid right-wingers are correct on one account: Alberto Gonzales would make a lousy Supreme Court justice.