Just how close have we come?

By only 2 votes in SCOTUS was Hamdan vs Rumsfeld decided - 5 to 3.  In all of the hurrahs in the liberal/progressive blogosphere these past two weeks, do we really have the right to celebrate?

How close to the brink did we just come?

...More below the fold....

Here are the things that could have made our futures quite different:

If John Roberts had been able to consider the Hamdan case while sitting on the Supreme Court, the vote would have been 5-4.  No one here doubts that.

It is an accident of timing that such was not the case.

Judge Heard Terrorism Case As He Interviewed for Seat (August 17, 2005)

Judge John G. Roberts Jr. was interviewing for a possible Supreme Court nomination with top Bush administration officials at the same time he was presiding over a terrorism case of significant importance to President Bush.

Roberts recently released details of the months-long interviewing process showing that he met with Attorney General Alberto R. Gonzales and other administration officials about the Supreme Court job while sitting on the three-judge panel that eventually allowed Bush to resume the use of military officers to conduct trials of terrorist suspects held at Guantanamo Bay, Cuba. The "military commissions" are central to Bush's anti-terrorism strategy.

Roberts met with Gonzales on April 1, six days before hearing oral arguments in the case, which resulted in a unanimous decision in favor of the administration. Assistant Attorney General Peter D. Keisler, a top Gonzales deputy, argued the case on behalf of the administration.

One month later, with the case in progress, Roberts was summoned to the White House for a meeting with Vice President Cheney, White House Chief of Staff Andrew H. Card Jr. and Deputy Chief of Staff Karl Rove, among others. Bush conducted the final face-to-face interview on July 15 -- the same day Roberts and two other judges on the U.S. Court of Appeals for the District of Columbia Circuit issued the ruling in the case, Hamdan v. Rumsfeld .

That case was decided UNANIMOUSLY.  So, Roberts could have opted out of deciding that case, and the Administration's case would still have won at that level of appeal.

Had that case been delayed one month or so, Roberts would possibly not have heard the case.

Had they seen that he would have to possibly decide that case at the SCOTUS level, they would have decided to possibly replace him on the D.C. Court of Appeals or otherwise recuse himself from the case there.

Another scenario is that they could have nominated another wacko Scalia clone instead of Roberts.

THANK YOU GEORGE W. BUSH FOR NOMINATING ROBERTS WHEN YOU DID!!!

If Roberts had been able to hear the case on the Supreme Court, he would almost certainly have voted with Scalia, Thomas and Alito.  That would have made the vote 5-4.

Is there any scenario in which that 5-4 might have become 4-5?  It would have come down to whom?  Kennedy?  I think so.

Kennedy sided with the historical majority, but one may wonder if Roberts had been there, if Kennedy might have been swayed otherwise than his eventual vote by something Roberts might have said.

John Paul Stevens is now 86.  Had he retired or died during Bush's term in office, we would certainly have one more wacko on the Court.  THAT would have made the Hamdan decision swing the other way...

What would the world be like today, if that had happened?  Bush would be gloating, the military commissions would be getting ready to try men without due process, and 230 years of  force fields of privacy invasion would even now be crumbling.  

As it stands, it seems that the people behind Bush may have lost their push to hegemony in all matters, for the Unitary President/Fuhrer.

We had four levels of protection.  Kennedy.  Stevens' heart.  The stroke of lucky timing that Roberts had heard that case on the Court of Appeals.  That Bush nominated Roberts and Alito instead of Alito and someone else.

Will the world remain that lucky?. . .

We just squeaked by...

. . . . TD