Monday, October 01, 2007

One final thought for the opening day of the term

Today's Denedo argument has generated a great deal of excitement -- and not all of it over Judge Erdmann's whiskers. But here's a thought: if CAAF issues the requested writ, the SG could (and very well might) seek a cert petition from the Supremes. If CAAF denies the requested extraordinary relief, Denedo couldn't seek a cert petition to review that ruling. Such a legal regime isn't irrational. If the government were to lose, it would have nowhere to turn but to the Supremes, while if Denedo were to lose, he could institute a collateral challenge with the civilian federal judiciary. Nevertheless, a system in which either party could seek cert certainly seems more equitable than the current system. H.R. 3174 would establish such parity.

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