We’ll have a full recap of today’s oral argument in Hamdan v. United States up shortly. In the meantime, here’s one observation – which I reckon Steve will supplement with some remarks of his own.
Suffice it to say that this appeal’s outcome is not obvious. The inquiry regarding its possible mootness seems to have been the handiwork of Judge Ginsburg. He asked the most questions about the matter – and, pointedly, asked almost no questions whatsoever about the case’s merits issues. Chief Judge David Sentelle, perhaps deferring to Ginsburg, ordered further briefing on mootness from both parties. (The court had asked the parties to be prepared to answer questions about mootness at today's oral argument.) But at the same time, the Chief Judge seemed to sympathize with some aspects of the government’s arguments regarding congressional power and military commissions. Not so with Judge Kavanaugh. He repeatedly challenged the views of the government’s lawyer, John De Pue, while at the same time suggesting some sympathy for Hamdan’s position.
Which is to say: gauging by who asked what, there’s at least one judge interested in the case’s mootness; another judge hinting at a vote for the government, and still another judge hinting at a vote for the appellant. Precisely what does that point to, outcome-wise? Stay tuned.