It was a victory for the Equal Protection Clause today when Judge Reggie Walton denied Scooter Libby's Motion for Bail Pending Appeal today, meaning that Scooter will begin serving his sentence in a few months rather a few years.
What stood out to me, however, was Judge Walton's sarcastic footnote delivered last week, in which he commented on the sudden involvement of 12 prominent law professors, arguing that the grave constituional issues involved required that bail be set. The footnote reads,
It is an impressive show of public service when twelve prominent and distinguished current and former law professors of well-respected schools are able to amass their collective wisdom in the course of only several days to provide their legal expertise to the Court on behalf of a criminal defendant. The Court trusts that this is a reflection of these eminent academics' willingness in the future to step to the plate and provide like assistance in cases involving any of the numerous litigants, both in this Court and throughout the courts of our nation, who lack the financial means to fully and properly articulate the merits of their legal positions even in instances where failure to do so could result in monetary penalties, incarceration, or worse. The Court will certainly not hesitate to call for such assistance from these luminaries, as necessary in the interests of justice and equity, whenever similar questions arise in the cases that come before it.
As background, what Walton was commenting on (and his sarcasm is obvious) is the tactic of having 12 prominent law professors weigh in on this issue, while professing to not be concerned with Scooter but instead purely lending their expertise on the complicated constitutional issues involved. (link to pdf of motion)
But Walton isn't intimidated. He's got Lifetime tenure and he didn't check anything at the door. So he tells them that if the proper application of the Constitution is indeed their motive, he knows they can be counted on, just as quickly, in the future when poor, criminal defendant's case presents an equally compelling issue.
In a week or so, I need to ask for a continuance to submit a brief on a speedy trial issue and think it'll help to bring this up, cautiously, and say "by the way, I know some law professors who might be able to help us out on this, your honor." It probably won't get me anywhere, but I think I have a Walton-like judge who will see the irony and maybe look a little harder at my client's claim, or at least make him laugh a little bit.
Nice to see signs of an independent judiciary, to see some cajones rather than cowardice, in an era of Alitos.