There are lots of people who put Judge Callahan on the short list for the Supreme Court if the Republicans win the 2008 election. Indeed, Tom Goldstein -- who's an extremely bright and informed guy -- predicts she'll be the first appointment.
I'm not Carnac, so can't weigh in on the probabilities. That said, on the merits, cases like this don't help Judge Callahan's cause. It's a criminal case, but one without the typical political stuff at stake. The issue is whether a guilty plea and waiver of appeal deprives the Court of Appeal of jurisdiction to hear the appeal or whether, instead, it's a claim-processing rule that may well be enforced, but isn't jurisdictional; e.g., can be waived by the government.
Issues relating to what's jurisdictional and what's not are fairly complicated. Partially because the law here isn't crystal clear and partially because judges often misuse the term or fail to understand what it really means. So it's not the most facile concept in the universe. Which is why the Ninth Circuit took this case en banc. Because there were some Ninth Circuit cases that said that waivers are jurisdictional and others that said they weren't, and this was precisely the type of intracircuit conflict that needed to be resolved.
Now, as I said, deciding what's truly "jurisdictional" isn't totally easy. That said, I think that Judge Bybee writes an entirely compelling and persuasive opinion that cogently explains that the waiver here is indeed an obstacle to theappeal, but that's it's not a jurisdictional one. Which was my initial (somewhat informed) take as well, and I think that Judge Bybee clearly explains why this view is correct.
I'm not the only one who thinks so. Judge Bybee's opinion garnered 14 of the 15 votes on the en banc court. Including the votes of conservative judges like Pamela Rymer and Milan Smith. Plus, remember, Judge Bybee himself is far from a lefty.
Who's the one dissenter? Judge Callahan. Who writes an opinion that's simply not persuasive.
Now, mind you, there are some who might well -- and perhaps accurately --think that being on the wrong side of a 14-1 decision as actually advancing Judge Callahan's elevation. Either because one is of the view that she's the only judge who's smart enough to get the right answer here -- though I think that's clearly wrong -- or, more likely, that someone who's "bold" enough to refuse to make a holding even marginally in favor of a criminal defendant, even when weak-kneed conservatives like Judges Rymer and Bybee (!!!) go that way, is precisely what we should be looking for in a Supreme Court nominee. I'm positive that there are people who would take that view.
But, on the merits, I don't think this bodes well for Judge Callahan. It's a complicated case, and one that requires more than a little thought. And that she's on the wrong end of a 14-1 doesn't, in my view, say overwhelmingly positive things in favor of moving her up to a tribunal that deals with even more complicated and important issues.
It's only one opinion, of course. But it may nonetheless be a telling one.
