Here's a reason for the administration to be concerned about that military-commissions challenge making its way through the federal court system -- it looks like Justice Anthony Kennedy hasn't really been persuaded by the public shift against using civilian courts to try terrorists (via Marcy Wheeler):
"Article III courts are quite capable of trying these terrorist cases," Kennedy said, agreeing with the conclusion.
Kennedy also praised the hundreds of attorneys attending the four-day conference at the Hyatt Regency Maui Resort & Spa for taking up "one of the most crucial, dangerous and disturbing issues of our time — terrorism."
It was clear, he said, that an "attack on the rule of law has failed," referring to the use of military tribunals to try terrorist suspects, often before panels in Guantanamo Bay, Cuba.
So here's my question. Now that Justice Elena Kagan is on the Court, should the current challenge to the military commissions make it all the way to the top, are we going to see Obama's second appointment to the Court vote with the conservative bloc while Kennedy goes the other way? The swing vote on this issue isn't Kennedy; it's Kagan.
UPDATE: Of course, as Marcy points out, there's always the possibility of recusal. Rkref argues that Kagan might be the "deciding vote" instead of the swing vote, given that she has no judicial record.
