This means that the likely scenario is a SCOTUS hearing after the appeals complete sometime in the next session, and a ruling right in the middle of the Presidential election in June 2012.

In Charlie Savage’s story from last year on the sidelining of Laurence Tribe as head of an “Access to Justice” program at the Department of Justice, he reported that Tribe originally believed he would serve as counselor for “rule of law” issues in Obama’s Administration.

SCOTUS decided today to take John Ashcroft’s appeal of a 9th Circuit decision finding that he did not have immunity from suit in using the material witness statute to illegally hold someone without probable cause.

This is worrisome, not just because it’s another example of how Elena Kagan’s recusal on all these cases give the court an inherent conservative bias (even assuming Kagan will be better on executive power issues than I think she will be), but because by taking the case SCOTUS seems to suggest the 9th Circuit decision deserves more scrutiny.

It’s the first Monday in October, which means that the Supreme Court reconvenes in Washington. Their docket this term includes a number of First Amendment cases. And while the new members of the Court chosen by President Obama have created a true partisan divide, with the court’s members appointed by Democratic Presidents nominally on the center-left, and those appointed by Republicans on the right, we won’t get to see that in action entirely this year. Because Elena Kagan, the newest Justice, has recused herself from 25 out of the 51 cases so far this term.

I have no idea what Kagan thinks about this raid. But even during the argument, she sustained a fiction that the Court’s interpretation of material support to include peace efforts would be an unlikely use of prosecutorial discretion.

Josh Gerstein provides Lindsey Graham a soap box to complain that his efforts to craft a grand compromise with the Administration on Gitmo stalled in May.

With the long anticipated retirement of Justice John Paul Stevens, it was important for President Obama to appoint and get confirmed a new justice so there would not only be a full compliment of justices on the court, but to insure the ideological balance of the court was maintained. By selecting Elena Kagan, Obama certainly did not pick the most qualified person for the job, nor did he maintain the ideological balance particularly as Kagan undoubtedly moved the court to the right at least to some degree.

Nine years ago today, George W Bush was informed that “Al Qaeda [was] determined to strike in US.”

And then he went out to clear more brush at his pig farm in Crawford.

Meanwhile, the Senate needs to take a break. Passing a bill for state fiscal aid and confirming a Supreme Court justice in one day? That’s breakneck speed! Somebody get them a six-week recess, stat! Oh wait. . . .

In his remarks announcing his support, Graham said that “There’s plenty of reasons for a conservative to vote no, but there are plenty of reasons for a conservative to vote yes,” and while he didn’t agree with Kagan’s judicial philosophy, he felt duty-bound to support the nomination because of Presidential prerogative.