A Dash of Cold Water on Al-Marri

I was in my car on the way home from the airport when I first heard the news of about Al-Marri v. Wright (link), the already celebrated opinion in which the Fourth Circuit held that a lawful civilian immigrant may not be held in military custody.

My first thought was: my stars, that’s the most conservative court in the country.

Well, maybe it is, but here is a dash of cold water. The decision comes from two judges, both originally Clinton appointees. Diana Jane Gribbon Motz, who wrote the opinion, is a Clinton appointee. Roger L. Gregory, who joined her, was originally a Clinton recess appointee, although he was reappointed by President George W. Bush.

A third judge, Henry E. Hudson, dissented. Hudson was put on the court by President George W. Bush.

A look at the court’s current lineup suggests that the court might not be quite as conservative as I remember it. Among active (non-senior) judges, I count six Republican appointees and four Democrats, with a split on Gregory (link).