Intrigue on the bench

However dramatic a resignation from high office may seem, the act is only as good as the rationale behind it. In the case of Judge James Robertson — the Clinton appointee who resigned last week from the Foreign Intelligence Surveillance Court in connection with President Bush’s National Security Agency wiretaps — the likeliest possibilities are either a shabby politicization of the bench or a woefully rosy view of terrorism. Since Judge Robertson is a reliable foe of the Bush administration in the war on terror and a shining star in the Democratic firmament, perhaps it’s both — in which case it would be doubly good that he is gone.

It happens that Judge Robertson is one of Bill Clinton’s most liberal appointees whose rulings Bush administration officials have repeatedly castigated. The former Clinton adviser and campaign contributor was a godsend to various Clinton supporters and associates, including Clinton Deputy Attorney General Webster Hubbell, whom Judge Robertson cleared of tax charges but the federal appellate courts eventually sentenced to a year and a half for mail fraud and tax evasion. All of which confirms that Judge Robertson is fully human, has ties to the Democratic Party and spars with the Bush administration regularly.

But even presuming apolitical motives, it’s quite clear that Judge Robertson wasn’t really cut out for the intelligence court in the first place — at least not in an age of terrorism — because he subscribes wholeheartedly to a hopelessly rosy “alien terrorists have rights, too” school of jurisprudence. In U.S. District Court in November 2004, he ruled that suspected al Qaeda operatives captured in Afghanistan deserve protections under the Geneva Conventions. That was too much for the U.S. Court of Appeals for the District of Columbia, which overruled him in July.

Things could play out quite nicely for Judge Robertson. He is holding onto his seat on the U.S. District Court, so it’s not as if he has thrown an entire career on the line. Certainly his friends in the Democratic Party will be impressed with the attention he has grabbed. He hasn’t even been forced to make his reasons public, opting instead for the damage-maximizing, accountability-minimizing effects of the rumor mill. In that sense, the judge’s resignation could be a good thing for everyone involved.