Judge Tatel [Y’all remember him from Fitz’ enforcing subpoenas in US v Libby.] agreed with the other two members on the threshold [and maybe pretty technical looking, if YANAL at least] question of the court having jurisdiction, IE whether Miers and Bolten had a right of appeal from Judge Bates’ order.

But Judge Tatel dissented – strongly doesn’t capture it: foundationally? – on the practical relief Miers and Bolten [well, really Bush and Rove et al] were seeking.
Judge Tatel asserted that the court had NEVER EVER BEFORE granted a stay SOLELY on the ground of mootness.

If I was counsel for the House and was listening to Tatel suggest that, I’m sure I’d be tempted to say something like: Thanks for the good thought, but please, no thanks for the reasoning. Even this dissent holds potential further value if the next Congress wants to use any part of the record of the current Congress; Miers and Bolten could argue not just “nullity” but also “mootness” on the implication that all 3 members of the committee were thinking mootness. So Congress effectively has to start all over again with these two, and they get to take the position that past isn’t even prologue.

A. Only “this” Congress can have issued “these” subpoenas, so when this Congress is gone, the subpoenas evaporate. The subpoenas may get reissued by the next Congress, but this Congress will be gone (and don’t we all, in our heart of hearts – wish that were true, that they would all be gone with Pelosi and Hoyer leading the march of the lemmings?)

B. This Congress sat on their hands and waited until pretty late in the game before trying to get review and now they are coming to us to try to get the court to set up superfast expedited review schedules to squeeze in review before this Congress is no more.

C. [Going into speculation land] Even if we, the court, were to agree to expedited review, it wouldn’t matter bc we think and the Congressional committee agrees that then there will be requests for en banc and for the Sup Ct to review and of course cert will be granted and of course all of that will take longer than there is left in this Congress.

D. So, based upon all our spec about what might happen in C above, we are going to say we don’t have to hustle bc it doesn’t matter bc it wouldn’t get done in time anyway. Oh, and besides, it might be that we are wrong and the Congress ending doesn’t moot the ultimate point, but if we are, then it doesn’t really matter when THAT determination is made, bc, it will be making the law on the issue irrespective of mootness. If that were to happen (basically, they are talking about a Roe v Wade type of decision, where the court said that while, by the time a case would reach the Sup Ct, someone is already going to have had either a baby or an abortion, the case wasn’t moot bc a determination was needed and the factual setting would never allow for a case to reach full review prior to resolution of the facts in the case in controversy)

Why the circuit didn’t think it would be worth trying to make a resolution while the Congress was still around and presume that no other appeal would be timely granted to interfere with the subpoenas – they aren’t real clear on that, but bmaz is right, this is really all at the feet of the two years of the Pelosi controlled House. They’ve been worse than pathetic.

BTW – Mukasey paid a lot of attention to the Judiciary Committee input to slow down on his new rules too.

http://www.ibls.com/internet_l…..38;id=1411

I believe the legal terminology is “nanner nanner nanner” *sigh*

The thought of another Pelosi led House makes me ill. I’d almost rather listen to Palin’s inane prattle.

One would think they would be concerned about the lack of faith that the American public have in congress and the Supreme Court would be enough of a reason to move this up the ladder quickly.

I left a small rental house that I owned untreated for termites and that house crumbled in no time.

waste of time..WASTE OF TIME. When is seeking justice a waste of time? When the public sees that those in the Bush administration can act above the law and not answer to congressional subpoenas, where is this balance of powers that they were talking about.

Sure does not appear to be much balance in that decision.

This is a disgrace, but the real fault lies with Pelosi, Hoyer et.al as they intentionally strung this out to an extent that pretty much compels the conclusion that this is the precise result they desired. The dicked off all kinds of time in doing it, and completely rejected common sense and even Bates’ advice that they needed to man up and exercise their Constitutional prerogatives. Fuckers.

By the way, why the hell would “The Committee” admit this? WTF is wrong with them?

But the Committee recognizes that, even if expedited, this controversy will not be fully and finally resolved by the
Judicial Branch—including resolution by a panel and possible rehearing by this court en banc and by the Supreme Court—before the 110th Congress ends on January 3, 2009.