In one of the more dramatic decisions of the last Supreme Court term, justices voted 5 to 4 to ban the death penalty in a Louisiana child rape case, Kennedy v. Louisiana. The court based its decision in part on the notion that there was a national consensus against executing people for rape, as suggested by the complete absence of any federal statute making child rape a capital crime. As it turns out, though, the court was wrong. There is such a statute under military law, an error pointed out by Linda Greenhouse on her way out the door from the New York Times.
Based on that omission, Louisiana yesterday petitioned the high court to rehear the case. It’s still a longshot, but given the nature of the error, not impossible that the court might reconsider. Besides, the state has a good lawyer. Fighting to execute Patrick Kennedy is Georgetown law professor Neal Katyal. Katyal became a darling of the liberal establishment in 2005 after successfully arguing the Hamdan case, in which the Supreme Court found the Bush administration’s military tribunals for trying Guantanamo detainees unconstitutional. (Katyal is currently defending Hamdan, Osama bin Laden’s former driver, in his military trial, which started this week.) The case rocketed the young, telegenic Katyal into the public eyehe was profiled in Vanity Fair, no less–and his name is one of those constantly floating in the ether as a potential democratic Supreme Court nominee.
His role in the Kennedy case suggests that Katyal is not quite the liberal he’s been made out to be by the media. Or, he’s got tremendous political savvy. His choice to defend the death penalty in a case that even some court conservatives can’t stomach brings back faint memories of a young presidential candidate flying home to Arkansas to oversee the execution of a retarded man. If you aspire to a lifetime appointment to the Supreme Court, what better way for a liberal to prove political independence (and confirmability) than to get someone executed?