Friday, March 12, 2010

Ooops, I forgot my briefs.

By Craig Albert

A short note regarding a flap from yesterday. According to the NYT, Senator Kyl was shocked, shocked to learn that AG Holder had not listed in his pre-confirmation questionnaire his "signing" of a brief in the Padilla v Rumsfeld case. Putting aside the fact that Holder (along with Reno and 2 other former DOJ officials who were amici) didn't "sign" those amicus briefs (they were signed by the friendly lawyers at Arnold & Porter), it's hard to imagine that Kyl didn't know about Holder's status in the case, if he had been paying any attention at all. After all, Kyl was an amicus in Hamdan, so he was probably keeping abreast of the issues. The irony is that, as John Dean pointed out in a Findlaw column of a few years ago, Senator Kyl and Senator Graham fabricated a piece of legislative history specifically for the purpose of supporting their amicus position in Hamdan. It's hard to forget the novels that you write.