Legal Realism Meets Its Limits...

I would have bet good money that Judge Sentelle, at least, would have said that Libby's appeal presented a "close question" and that Libby should remain free while his appeals are pursued--which means until January 19, 2009, when he receives a pardon. Sentelle, after all, was the judge how thought the hyperpartisan wingnut Kenneth Starr who had at least five right-wing reporters on speed-dial to leak to was an appropriate choice for special prosecutor.

I would have been wrong:

Appeals court won't delay Libby prison term: A federal judge last month ruled Libby would have to report to prison in six to eight weeks. His lawyers then asked a U.S. appeals court to keep Libby out of prison while he appeals his conviction, a process that could take months. The three-judge panel of the appeals court rejected Libby's request in a one-paragraph order, ruling he has not shown that his appeal "raises a substantial question." The ruling was issued by all three members of the appeals court panel. Judges David Sentelle and Karen LeCraft Henderson were appointed by Republican presidents while Judge David Tatel was appointed by a Democratic president.

I've heard three guesses for what went down:

1. Judge Sentelle wears a black robe, tries to do justice, but simply has awful judgment: he really did think that the hyperpartisan wingnut Kenneth Starr who had at least five right-wing reporters on speed-dial to leak to was an appropriate choice for special prosecutor.
2. Judge Sentelle thought it would be really embarrassing if he pretended that the Libby appeal was a "close question," and thinks that White House-aides should be willing to do two years' white-collar time if they lie to protect their president (or vice president).
3. Judge Sentelle thought it would be somewhat embarrassing if he pretended that the Libby appeal was a "close question," and the second vote wasn't there on the panel.

Comments

[TomF]

It's not one, and it isn't the second clause of two. The lack of a 2nd vote certainly could be part of it.

It's possible that the choice here is between the trial judge and Libby; if the trial judge really gave Libby a clean trial (and he seems pretty self-confident that he did), then Sentelle knows (from the party's pleadings describing the potential issues) that down the line there will be a court of appeals opinion strongly affirming the trial court. It'd look pretty silly then to be hanging out there with "he's sure got some great issues to take up."

And I think you're overestimating the time the appeal will take.

[julia]

I'd've gone for 4) Judge Sentelle belongs to a wing of the conservative movement which was willing to suffer Bush and his administration while it looked as if they could nail down the permanent Republican majority but which has now dropped him like a hot rock.

I can't quite believe any of the other answers. They all presuppose either some form of integrity or a capacity for shame.

[Steady Eddie]

Of all the choices suggested above, I'd say Julia's was the closest. But I'm a little doubtful that it's fully on the mark given the continuing equivocation in Republican ranks about how to disengage from this disaster of an Administration, especially in light of the incapacity of major Republican presidential candidates to figure that need out (clearly reflecting something in signals from major funders) and the lack of any follow-through action after the rhetoric thus far from people like John Warner. There just isn't that kind of consensus, at least not at an operational level.

It looks to me like Sentelle sees -- in the lack of any clear signal from the White House about a pardon -- a lack of clarity as to whether or not there are one or two sides on this issue within the White House, as between Bush and Cheney. If Rove, via Bush, sees it in his best interest to let Cheney, via Libby, twist in the wind without some exercise of the pardon power (and he's done that before, considering that Cheney had to intervene in the early Plame case to get the McClellan to replicate for Libby the public clearance they gave automatically for Rove), then Sentelle is going to take that lack of clarity as meaning that he is not to signal, by a dissent, that CJ Roberts should go into action on Libby's behalf (that is, that the right wing activist judges should take the political heat rather than Bush).

Sentelle would have no shame about being a dissenter if he thought it his needful role to send such a signal, given what was revealed on his continuing role on Starr in the Hunting of the President. His association here with two other judges with integrity does not mean he has integrity himself. It means that Sentelle believes that Bush feels Cheney must pay for leading their joint ideological excursions into such humiliating failure; and that if Bush changes his mind and uses the pardon power, that will be his (Bush's) political price to pay. Sentelle will not pay it without a clear indication that he must, which he has not received.

And PSP is either an extremely silly or extremely disingenuous individual. This is a "standard" or routine case? That doesn't even rise to the level of a joke.

[otto]

At 5.48pm, Fox News says Bush is commuting Libby's sentence.

[Steady Eddie]

And now the political price -- first President to go below 20%?

Can Fitzgerald investigate the pardon?

[Anderson]

No. 5 would appear to be "Judge Sentelle knew that the fix was in, and that Bush would prefer an excuse to commute Libby's sentence before the Democrats could take the White House."

[Chris]

Ding ding ding! Anderson nails it. Why make yourself look like an idiot for claiming a specious legal rationale when it's all going to be rendered moot in a moment anyway?