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Ann Althouse on the NSA Case in the NY Times.--

In an op-ed in the New York Times, Ann Althouse argues:

TO end her opinion in American Civil Liberties Union v. National Security Agency — the case that enjoins President Bush's warrantless surveillance program — Judge Anna Diggs Taylor quoted Earl Warren (referring to him as "Justice Warren," not "Chief Justice Warren," as if she wanted to spotlight her carelessness): "It would indeed be ironic if, in the name of national defense, we would sanction the subversion of ... those liberties ... which makes the defense of the nation worthwhile."

As long as we're appreciating irony, let's consider the irony of emphasizing the importance of holding one branch of the federal government, the executive, to the strict limits of the rule of law while sitting in another branch of the federal government, the judiciary, and blithely ignoring your own obligations. . . .

Look at that juicy quotation from Judge Taylor's ruling: "There are no hereditary kings in America and no powers not created by the Constitution."

But this is sheer sophistry. The potential for the president to abuse his power has nothing to do with kings and heredity. (How much power do hereditary kings have these days, anyway?) And, indeed, the president is not claiming he has powers outside of the Constitution. He isn't arguing that he's above the law. He's making an aggressive argument about the scope of his power under the law.

It is a serious argument, and judges need to take it seriously. If they do not, we ought to wonder why a court gets to decide what the law is and not the president. After all, the president has a sworn duty to uphold the Constitution; he has his advisers, and they've concluded that the program is legal. Why should the judicial view prevail over the president's?

This, of course, is the most basic question in constitutional law, the one addressed in Marbury v. Madison. The public may have become so used to the notion that a judge's word is what counts that it forgets why this is true. The judges have this constitutional power only because they operate by a judicial method that restricts them to resolving concrete controversies and requires them to interpret the relevant constitutional and statutory texts and to reason within the tradition of the case law. . . .

This means that the judge has a constitutional duty, under the doctrine of standing, to respond only to concretely injured plaintiffs who are suing the entity that caused their injury and for the purpose of remedying that injury. We trust the judge to say what the law is because the judge "must of necessity expound and interpret" in order to decide cases, as Chief Justice John Marshall wrote in Marbury. But Judge Taylor breezed through two of the three elements of standing doctrine — this constitutional limit on her power — in what looks like a headlong rush through a whole series of difficult legal questions to get to an outcome in her heart she knew was right.

If the words of the written opinion reveal that the judge did not follow the discipline of the judicial process, what sense does it make to take the judge's word about what the law means over the word of the president? If the judge's own writing does not support a belief that the rule of law has substance and depth, that law is something apart from political will, the significance of saying the president has gone beyond the limits of the law evaporates.

There's irony for you.

James Fulford (mail):
I suppose there's no one in America so like a hereditary monarch as an appointed-for-life Federal Judge.

The have the robes, they have a Court of their own, they can send people to jail, they can do all kinds of things that Charles the First lost his head for trying to do--and they can't be removed except by both Houses of Congress.

BTW, the link above will go bad in about a week; this one won't.

[A Law Unto Herself, By ANN ALTHOUSE, New York Times, August 23, 2006]
8.23.2006 2:00am
Justin (mail):
Cute, but entirely unconvincing. Also (assumingly intentionally) completely ignorant (perhaps deceptive is a better word?) about the law's flexibility of standing doctrine when important legal issues (such as abortion) would consistently avoid legal review by remaining to the narrow original guidelines of standing (which themselves are interpretations, not direct orders, of Article III).

Liberterian apologists for the Bush Administration, rather than looking inwards to examine the greatest power grab by the federal government since World War II (and the most unjustified power grab ever), seem more and more reduced to both rhetorical sophistry and attempting to avoid serious issues. It's unfortunate but not unexpected.
8.23.2006 2:07am
Zach (mail):
Good article. The NYT deserves at least a golf clap for commissioning Professor Althouse to write it, especially since their own editorial page was overly enthusiastic in favor of the decision just last week.
8.23.2006 2:16am
fishbane (mail):
After all, the president has a sworn duty to uphold the Constitution; he has his advisers, and they've concluded that the program is legal. Why should the judicial view prevail over the president's?

An interesting question.

If we decide that the Executive can't be overridden, isn't the logical conclusion that we should simply subsume the Judiciary under the Executive? That would be the practical effect, so it would simply be honest.

Alas, I fear that's been tried before, somewhere... so we have to keep it around, neutered and subservient, but looking independent... such a shame.

Aside from being a talented writer, I really don't get why people find Althouse compelling. I don't mean to attack her with this statement; I'm just saying that she is marginally better at repeating the same old talking points that one can pick up at Instapundit or Powerline, modulo some spittle, and plus some personal anecdotes.
8.23.2006 2:20am
MarkW (mail):
After all, the president has a sworn duty to uphold the Constitution; he has his advisers, and they've concluded that the program is legal. Why should the judicial view prevail over the president's?

Because no one gets to be the judge in their own case.
8.23.2006 2:28am
Just an Observer:
And, indeed, the president is not claiming he has powers outside of the Constitution. He isn't arguing that he's above the law. He's making an aggressive argument about the scope of his power under the law.

It is a serious argument, and judges need to take it seriously.


What Althouse neglects to mention is that the President's lawyers refused to make a serious argument on the merits of that theory in Judge Taylor's court. Althouse conceded as much on her own blog yesterday:


UPDATE: I see from reading the comments to Orin's post that the judge did deny the motion for a stay on an earlier occasion, on May 31st. You can see the order here. There's no discussion of the reasoning for this or of any of the cases the defendants cited in support of the motion for the stay. Arguably, this gave the defendants an opportunity to present evidence to defeat the summary judgment motion, and they chose not to take it.


That fact seems not to have made it into the op-ed.

For the details that "update" refers to, see Orin's posts here and here, especially the comments.

So Althouse seems to have rushed her op-ed into publication without fully understanding the case.

"There's irony for you."
8.23.2006 3:08am
Ship Erect (mail) (www):
Shorter Ann Althouse: "I believe the President and his advisors, so let's eliminate any checks on his power."

So, because he's not arguing that he's above the law, he's not above the law. Sure.
8.23.2006 5:30am
Dawnsblood (mail):
How about we try something novel. The Executive and the Judiciary disagree. Why not pressure the Legislative branch to weigh in? Seems worth a laugh or two.
8.23.2006 5:57am
Ann Althouse (mail) (www):
Ship Erect: You really didn't understand the op-ed. You might want to read it again without assuming you know what I'm going to say.

Just an Observer: You're missing something key. There's a difference between factual and legal questions. If the defendants decided not to present evidence and allow it to go to summary judgment, they are deciding to let the issue be a legal one, not a factual one. The op-ed isn't about the standard for summary judgment and so forth. But keep looking for irony. It may do you good.

Jim: Thanks for highlighting the op-ed. These comments are giving me a sense of how I'm going to be misunderstood all day. I think people know what they want the answer in the case to be, and if they liked the outcome from Judge Taylor, the chances of misreading the op-ed are high.
8.23.2006 8:33am
Simon (391563) (mail) (www):
What I wonder is why the President or his advisors deserve to be taken seriously on these issues. Their record on scope of constitutional powers speaks almost for itself; they have consistently made claims that before 9/11 would have been laughed out of Althouse's fed courts class, let alone a court of law. (Has everyone forgotten Padilla and Hamdi already?)
8.23.2006 9:25am
Richard Riley (mail):
I doubt Ann Althouse was "commissioned" to write her NYT op-ed piece. Usually these things are submitted for publication by the author, and the NYT or other paper decides if it wants to run it. Here, I think Ann Althouse gets to the heart of the problem with Judge Taylor's opinion and I'm glad the NYT ran the piece.

It's worth noting that no legal academic that I have seen has supported the judge's opinion on its substantive legal merits. The two most prominent academic supporters whose views I have read - Harvard's Lawrence Tribe and Chicago's Geoffrey Stone - both say essentially that the result was good and let's just not look too hard at the reasoning. As Ann Althouse says in her op-ed, that's almost a parody of results-oriented "activist" judging of the kind that the right wing complains about.
8.23.2006 9:37am
Richard Riley (mail):
UPDATE: Duke's Erwin Chemerinsky, in a piece in Slate last week, joins Tribe and Stone in strongly supporting Judge Taylor's ruling while making basically no effort to defend her reasoning. He says "critics would have objected to Taylor's opinion no matter how it was written." That is just a way of avoiding having to support or explain the judge's actual reasoning, which Chemerinsky basically acknowledges is not possible.

http://www.slate.com/id/2147955/
8.23.2006 9:58am
Bruce Hayden (mail) (www):
Seeing Ann over hear, I probably don't have to defend her, but nevertheless, I like the juxposition of her article with Tribe's. He said, essentially, don't look under the robe at the legal reasoning, just look at the results. Ann is saying that you have to look under the robe, at the legal reasoning, because you have one unelected judge overruling a popularly elected president, and that the power of the Judiciary since Madison is based on the premise that that branch can sit back and dispassionately determine the law through logic and precedence. But here we have a case of an unelected judge appearing to substitute her personal animus towards the president for the dispassionate analysis that is the foundation of the Judiciary's power.

The problem is that the Judiciary's power is what is termed "soft power". They have no real power - no police, soldiers, etc. Rather, all they have is a 200 year history of being deferred to because the people trust them to dispassionately do the right thing in counterbalancing the other two branches. The problem with Judge Taylor's opinion here is that it wasn't dispassionate, and it lacked analysis. In short, it was precisely the opposite of how the Judiciary has been able to garner their soft power over the last 200 years.
8.23.2006 10:06am
Rodger Lodger (mail):
Today's NY T reports the judge is connected strongly to a group that gave $125,000 to the Michigan ACLU. Enough said.
8.23.2006 10:11am
Bruce Hayden (mail) (www):
The question that those defending the opinion should ask is why should a popularly elected Republican president defer to a liberal activist judge appointed by a liberal Democratic predecessor and confirmed by a Democratic Senate? This is why the logic and analysis matters. If the judge had supported her conclusions with the type of analysis that we expect of Federal judges, this wouldn't have been an issue. But what the public sees here is an unelected activist with life tenure thwarting the will of the President in time of war, instead of a carefully reasoned opinion showing him to have exceeded his authority.
8.23.2006 10:16am
Andy (mail):
The government did not even raise the Article 2 defense/justification. The defense rested on essentially procedural arguments (standing/state secretss). As such, the judge had no constitutional obligation to deal with that argument. She was able to see it for what it is--a power grab.
8.23.2006 10:18am
Just an Observer:
Ann Althouse: But keep looking for irony. It may do you good.

The irony is that the administration failed -- in fact refused -- to make the "serious argument" you say it has. In fact, the record of the case in Judge Taylor's court can be read as a challenge for the President actually to make this case.

I don't defend everything about the judge's opinion. My comment was about the irony of your criticism.

Your defensiveness continues to obscure the obvious, that the President's lawyers continue to avoid judicial review of this "serious argument." His entire legal strategy depends on avoiding review of its merits in court, while making legal-sounding "arguments" in press releases and sound bites. Until you join in condemning that shell game, I find your own observations on this point quite unserious.
8.23.2006 10:27am
alkali (mail) (www):
Prof. Althouse writes:

Judge Taylor breezed through two of the three elements of standing doctrine ...

Bruce Hayden writes:

If the judge had supported her conclusions with the type of analysis that we expect of Federal judges, this wouldn't have been an issue.

To put it mildly, there appears to be an expectations issue here.

Judge Taylor wrote a 44-page opinion. That's on the high side, albeit not unusually high, in terms of writing from a federal district court judge. Typically the judge tells you how he/she ruled and why, focusing on the points the court thought were most important but omitting a lot of them. If the judge doesn't specifically mention your favorite argument from your brief, you generally take that to mean that he/she found your opponent's counter on that point more persuasive. (Where necessary, appeals courts will look to the parties' submissions to draw inferences about the basis for the trial court's rulings.) There's more that could be said about the subject matter of Judge Taylor's ruling, to be sure, but 44 pages is about as much as a federal judge writes, even in a very important case.

The practice of writing at length in trial court decisions under any circumstances is something of a novelty in federal courts. If you look at early volumes of F. Supp. ("Federal Supplement," the reporter which publishes a selection of federal district court opinions) the opinions, even in the most important cases, are frequently very short -- perhaps 10 or so typewritten pages. Even today, most federal district court decisions on procedural motions, evidentiary rulings, etc. don't get any kind of opinion at all, just a "granted" or "denied" in the margin with perhaps a few words of explanation.

The upshot, then, is that suggestions that Judge Taylor's opinion is unusually cursory or abrupt is really out of line with the actual practice of the federal district courts.
8.23.2006 10:44am
Bruce Hayden (mail) (www):
You are trying to shift the discussion from what Ann was talking about, the Judiciary, to the Executive. Yes, the Executive might have done a better job in defending this case. We all agree there. But in ignoring Ann's point, you are saying, IMHO, that it doesn't matter how the judge to where she got, because the government screwed up its defense. Ann is saying just the opposite - that it matters a lot about the appearance of how the judge got there, because the Judiciary is unelected with life tenure. Judge Taylor, appointed and confirmed by a Democratic president and Senate, respectively, has issued an injunction that would shut down an intelligence program that the popularly elected Republican Administration believes is saving American lives. What gives here the right and power to do so?

The answer is Marbury v. Madison and the 200 years of garnering of power by the Judiciary since then. But it is dependent upon the appearance that the Judiciary is unpartisan and dispassionate in its analysis. The opinion appears to be far from unpartisan and dispassionate, and is significantly lacking in analysis.
8.23.2006 10:45am
Justin (mail):
I really hope that 2nd comment wasn't actually Ann Althouse, or otherwise I fear for the children (of Wisconsin).

So what you're saying is that because DOJ won't even defend the facts of their program, they're above the law. Only if they admit that spying on citizens of the United States without a warrant is, you know, in violation of the Fourth Amendment, and that the authorization to use force in Iraq did not amend the constitution to destroy checks and balances (yes, I know Diggs' opinion doesn't discuss this aspect, but your logic doesn't see the difference), can we have a real discussion about whether the government is acting unconstitutionally.

But so long as they insist that 2 + 2 is 5 (and that the GOP Congress doesn't bother to impeach them for their transgressions, I presume), then we should all be going, yes, I can see how 2 + 2 can be 5. Sorry to bother you, Mr. President.

You must be proud of calling yourself a liberterian these days. Me, I wouldn't know how to look myself in the mirror.
8.23.2006 10:47am
alkali (mail) (www):
(Further to my 9:44 am post, I should point out that there are some federal district court judges who are noted for writing at much greater length -- Judge Weinstein in New York and Judge Young in Massachusetts come to mind. See in particular this recent 141-page opinion from Judge Young on federal sentencing practice.)
8.23.2006 10:48am
Bruce Hayden (mail) (www):
alkali

On the other hand, she filled up a bit of those 44 pages with invective towards the President. The criticisms would be less if she had spent those pages on analysis, rather than castigating the President. She was making political statements in a place that is supposed to be reserved for analysis. So, many are left with the opinion that her opinion was not supported by logic and precedent, but rather, by personal animus towards George Bush.
8.23.2006 10:52am
Bruce Hayden (mail) (www):
Justin

She said no such thing.
8.23.2006 10:53am
Justin (mail):
"The question that those defending the opinion should ask is why should a popularly elected Republican president defer to a liberal activist judge appointed by a liberal Democratic predecessor and confirmed by a Democratic Senate?" (the last part gets a line through it because we have no reason to believe a Republican senate would have blocked her).

"He" doesn't have to. He can always appeal to a panel of mostly GOP appointed judges in a GOP appointed senate. If that one happens to get some Clinton nominees on the panel, he can file a motion for rehearing and a motion for hearing in banc. He can also file a petition for certiari, which will likely be granted, and get his case heard by a panel of 9 jutsices, 7 who were appointed by GOP Presidents.

But that wasn't Ann's point, and that's not Judge Diggs' responsibility. She cant abdicate her role to make an initial determination just because there are layers of review.

Nor can she force the government to put on a defense. If they refuse to defend the case (on the merits, either based "on the law" or "on the facts" ::rolls eyes::), the obligation of every judge in this country is to grant the plaintiff's motions on default judgment, with the exception that the plaintiff's motion must be supportable on its face if the defendant is the government.
8.23.2006 10:54am
debsay (mail):
alkali,

The point of the article is showing that Judge Taylor didn't 'show the dispassionate logic and legal reasoning' that the Judiciary is supposed to use. She did however, show that she doesn't like Bush and accused him of acting like a 'king' - much like the far left wing blogs that invoke the 'boy king' name when they reference Bush. The only thing missing was the nickname 'Chimpy'... I mean - come on!
8.23.2006 10:55am
Justin (mail):

Bruce:


Ship Erect:

"Shorter Ann Althouse: "I believe the President and his advisors, so let's eliminate any checks on his power."

So, because he's not arguing that he's above the law, he's not above the law. Sure."


Ann: "Just an Observer: You're missing something key. There's a difference between factual and legal questions. If the defendants decided not to present evidence and allow it to go to summary judgment, they are deciding to let the issue be a legal one, not a factual one. The op-ed isn't about the standard for summary judgment and so forth. But keep looking for irony. It may do you good."
8.23.2006 10:56am
johnt (mail):
Hyperbole is good for the soul but I'm still trying to ascertain why this power grab is worse than other power grabs that dot American history in time of war, and sometimes peace.
That's what presidents do in wartime, they grab power, might have something to do with being commander-in-chief but that's just a modest guess.
The timing of Sistah Diggs-Taylor's pout-as-judicial opinion, couldn't have been worse, not that anybody noticed. How many days has it been since the British airlines bombing plot was broken up? Please, I don't wish to interrupt indignant expressions of legal niceities, after all we're only talking about human life and not the lives of those expressing their indignation But it does seem that electronic surveillance [ quiver, shudder, shake] was utilized as part of the investigation.
Presidents are not above the law, snide remarks to the contrary but given the legal background of NSA, which some seem oblivious to, Sistah Diggs-Taylor seems to think she is .
8.23.2006 11:00am
Justin (mail):
Bruce, I understand that Ann's original point is this.

"If I assume that most people aren't going to bother to read the opinion, I'll mischaracterize the standing portion, and nobody will read that (the standing portion isn't great, but there was really only one part that the opinion turned on, and I know many of great judges who don't spend their time discussing questions upon which the case does not turn)."

But my attack on her was her response to Ship Erect. And it's also, secondarily, the underlying second point. By saying the Judge didn't take it seriously, she's implying that there's no standing at all - that if the judge took it seriously, she would have come to a different conclusion.

Now one can only come to two conclusions about that - mine, which characterizes her as being willfully ignorant about the law, and Ship Erect's, which characterizes her as saying that the exception noted in the opinion was wrong because there can be no review in cases such as this. I personally think Ann's motivation was the former, but neither reflects well on her, and she chose to defend against the latter, and poorly.
8.23.2006 11:02am
Houston Lawyer:
The executive branch did what is common when a suit is filed. They filed a procedural motion to dispose of the case without arguing the merits. What ususally happens in such is case is the the judge rules that the procedural motion is denied, then instructs the defendant to answer more fully. In this case, the judge disallowed the procedural motion and then ruled on the merits before the executive could even argue on the merits. That is highly unusual.
8.23.2006 11:03am
Justin (mail):
Can someone please delete the racism inherent in johnt's posts? I don't think any reasonable person (using even a VERY broad definition of reasonable) is arguing that we should discount Judge Diggs because she's a black woman.
8.23.2006 11:04am
Justin (mail):
Houston Lawyer, you are wrong, as Ann would conveniently say, "on the facts" of your post.
8.23.2006 11:05am
Richard Riley (mail):
On another point, I think it's unfair to accuse Judge Taylor of a possible "conflict of interest" based on her being a trustee of the Community Foundation of Southeastern Michigan, as reported in the NYT article mentioned in a comment above.

http://www.nytimes.com/2006/08/23/washington/23judge.html (subscrip. link)

The purpose of "community foundations" like this is to support a wide range of organizations with no particular attention to their policy orientation. This community foundation's website makes clear it's devoted to the general doing of good in southeastern Michigan, not to specific support of the aims of the ACLU or any other organization. The ACLU's grants were undoubtedly among hundreds given by this organization during the last few years.

http://www.cfsem.org/about_us/index.html

"Community foundations" are the most anodyne of charitable grantmakers. This is not an issue, in my view.
8.23.2006 11:11am
The Drill SGT (mail):
I think Bruce is correct in his read of the article but let me weigh in with a few comments from a non-lawyer.

I think the thrust of the article is that the power of the Judiciary is based on dispassionate reasoning from facts and the law as interpreted over the years.

Ann wasn't taking a position on the substance of the case, she was complaining about the ridicule of the law that comes from results like this.

When a judge ignores the most relevant case law (all the FISA precedents for example) and uses hyperbolic language to reach a forgone conclusion it casts disrepute on judging in general and hurts rather than helps the plaintiffs in this case.
8.23.2006 11:12am
percuriam:
Justin: Liberterian apologists for the Bush Administration, rather than looking inwards to examine the greatest power grab by the federal government since World War II (and the most unjustified power grab ever), seem more and more reduced to both rhetorical sophistry and attempting to avoid serious issues. It's unfortunate but not unexpected.

you may be right that this was the greatest power grab by the federal government, but that's irrelevant to the point of Ann's article. I read the article to mean that Judge Taylor's ruling was not based on sound logic and legal analysis, and the absence of those items in her ruling is what makes her a "king." Simply, Ann's point was that the pot is calling the kettle black.
8.23.2006 11:14am
Archon (mail):
I think Diggs race is quite relevant. She was made a judge today mainly because she is black. Diggs was appointed as part of Carter's "lets put unqualified minorities on the federal bench" plan. Her recent opinion is only proof that she lacks basic legal reasoning skills.

I don't think she is qualified to drive a bus, let alone sit on the federal bench.
8.23.2006 11:14am
Matt Barr (mail) (www):
If (as an Article III Judge) you're going to be careless about your legal reasoning, you're going to lose credibility when you conclude another branch is acting outside the law. If (as a private citizen) you argue the President is acting outside the law and a careless legal opinion is your most prominent support, your argument is going to be weakened.

That's what I just read. Why are so many people reading "Yay Bush!"?
8.23.2006 11:16am
Simon (391563) (mail) (www):
Please, I don't wish to interrupt indignant expressions of legal niceities, after all we're only talking about human life and not the lives of those expressing their indignation.

So much for "give me liberty or give me death."
8.23.2006 11:25am
Just an Observer:
Justin,

I think that Althouse's comment to me, which you quote, completely misses the point about distinguishing legal issues from factual issues.

The judge implored DOJ to brief on the legal issues, yet it contumaciously refused. So the so-called "serious issues" were hardly argued by the government at all, except as they touched on the state-secrets or standing matters.

Althouse implies that the government was right in choosing to engage those issues only at the appellate level. If so, the professor should join in praising Judge Taylor for allowing consideration of those legal merits to go forward.
8.23.2006 11:26am
JosephSlater (mail):
Poor legal reasoning is not a good thing, even if the case comes out the way you want it too, and such cases do highlight the "anti-majoritarian" problem. I assume all the folks making that point about this decision also made it about Bush v. Gore, a decision at least as intellectually indefensible and almost certainly more important.

It's sad to see racism creep into the comments thread. I don't know if it's worth responding on the merits. But if you want to talk about appointing and trying to appoint unqualified or marginally qualified folks (per ABA ratings) to the federal bench, supporters of the Bush admin. live in houses made of exceptionally thin glass.
8.23.2006 11:31am
Bruce Hayden (mail) (www):
Justin

What the judge could also have done is to scratch the personal attacks on the President and give us more analysis. Yes, maybe she didn't strictly need to give us more analysis, but this isn't a typical case. It is going up on appeal, and if the Circuit Court affirms, it will be heard, very quickly, by the Supreme Court. In a lifetime appointment to the bench, how many of her opinions can she say that about? My guess is one or two, including this case.

You all may be right that the DoJ screwed up the government's procedural position here by not rebutting the plaintiffs' case on the merits, but rather concentrating on the State Secrets privilege. Nevertheless, the case was intensely political, and, as a result, deserved critical analysis. Yes, she may have performed such. We shall never know. Rather, we are left with the impression that her decision was political by its invective and its lack of analysis. And that is the problem - the appearance of impropriety.
8.23.2006 11:34am
Daniel Chapman (mail):
A couple months with all comments disabled might do this site good... They're hardly worth reading these days, and I think some of the spite is wearing on the primary posters.
8.23.2006 11:38am
Archon (mail):
It's not racist to point out that race was a huge factor in Diggs acquiring a seat on the federal bench. She has a track record demonstrating that she in unqualified for the position. This opinion is just the latest example.

Diggs is a poor judge who obtained her position racist preferences.

As for Bush candidates - it is well known that the ABA is politically biased. Black liberal judges who barely graduated law school get a well qualified rating while white men who dare to join the federalist society get poor ratings.
8.23.2006 11:41am
Bruce Hayden (mail) (www):
Let's not get into the question of ABA accredidation, given the organization's obvious political bent. The question is not whether Republicans or Democrats appoint the better judges. But rather, whether or not the opinion appears to be more politically than legally motivated.

The problem is not that the opinion was or was not politically biased, but that it appears to be so. I have heard a myriad of reasons to question whether it really was. But that doesn't alleviate the fact that it appears to be so. And the problem with that is that it detracts from the legitimacy of the Judiciary, which is based to a very large extent upon the expectation that the judges in our system make dispassionate legal determinations, letting the chips fall as they may. In this case, there was little legal discussion of why the chips fell the way they did, and lot of discussion on the perceived sins of one of the parties.
8.23.2006 11:43am
JosephSlater (mail):
If I didn't make it clear the first time, I'm no huge fan of the reasoning of Diggs's opinion. Having said that I'm happy to match the legitimacy of the ABA's accredidation against entirely unsupported racist attacks on Diggs.
8.23.2006 11:49am
alice:
What a lot of talk about nothing. No matter what the ruling was, one side or the other would have appealed it.
8.23.2006 11:50am
Third Party Beneficiary (mail):
While I wish Judge Taylor's opinion had been more detailed, I also can't fault her for her tone. I've seen judges write far more harshly worded opinions than this and it is becoming very obvious to anyone who follows these cases that DOJ's attorneys are becoming exceedingly lazy in all of them because they believe that they can just shout, "State secrets doctrine!" and win. (And unfortunately most judges are overworked enough to let them get away with it.)

And really, for the attorneys and law professors here who are critical of Judge Taylor, if you went into court and the judge asked, "Where's your brief?" and you responded, "Oh we have a brief written your honor, but it's on file at my office, why don't you go there and read it," do you seriously think that the judge's final opinion wouldn't (a) give every possible break to your opponent, and (b) be very harsh to you and your client? In fact, I probably would expect quite a few federal judges to start dishing out sanctions to any private attorney who tried pulling something like that. Pace Prof. Althouse, blowing off the judge is a form of "arguing that he's above the law".
8.23.2006 11:51am
Bruce Hayden (mail) (www):
JosephSlater

Obviously, any racist attacks against Judge Taylor have no place here in this forum, nor, I think most, if not all, here would agree, in any other forum.
8.23.2006 12:01pm
Medis:
JaO is, of course, right that people continue to criticize Judge Taylor for not addressing arguments the government apparently did not make.

Anyway, one "minor" point: the power of federal judges does not come from whether we like their opinions, and it does not come from Marbury. Rather, it comes from the Constitution of the United States, specifically Article III, which vests the judicial power of the United States in the federal courts.

Now, I know that some like to ignore this fact, and like to say things like that unelected judges should not be telling elected officials what the laws of the United States, including the Constitution, allow them to do. But if you feel that way, you really need to advocate getting a new Constitution, because that is the ultimate source of this "problem".
8.23.2006 12:03pm
Bruce Hayden (mail) (www):
I do fault the judge for her tone. I think that many are left with the impression that her decision was based on her personal feelings towards the President, and not on the facts and the law. Either less invective or more analysis would have mitigated against this. Yes, maybe her decision was based on both the facts and the relevant law. We really don't know. All we are left with is the invective.
8.23.2006 12:05pm
Falafalafocus (mail):
From what I've seen, there is an ongoing defense of Judge Taylor's opinion that "hey, Bush is an unconstitutional guy doing horrible things, so if we have to fudge the law, then so be it." (Sometimes this argument euphemtistically says "well, the result is correct so let's not worry about the detail of the rationale."

This is an entirely new theory of law. I think we can make it work. If appointed Judge, I will proclaim that Pluto is no longer a valid planet. Scientists agree with that result, so should it matter if there is a case for me to decide? After all, all that matters is that evil scientists have been running around with the false premise that Pluto is a planet. What's more important, the fact that Pluto is not a planet or that pesky case and controversy requirement? I'm a Judge, darnit. What I say is the law and you really have no reason to question my authority, you evil Bush supporters.

Let's just stop the bickering and agree. (Irony) If the trial court wants to rule that the administration is acting unconstitutionally, can't we all agree that it really doesn't matter how or why? (/Irony)
8.23.2006 12:07pm
Archon (mail):
For those who think its racist to point out the fact that she got her position because of her race; please explain your reasoning.

The facts are:
1. Diggs was appointed by Carter as part of an affirmative action program and her race played a huge part in her appointment.
2. Diggs has a poor track record including an unusual amount of reversals.
3. This latest opinion has been widely critized for its lack of legal reasoning.

I've got an idea. Maybe we should put qualified judges on the bench instead of cow towing to the NAACP by appointing judges because of their race.
8.23.2006 12:08pm
Third Party Beneficiary (mail):
"Either less invective or more analysis would have mitigated against this."

With all due respect, no it wouldn't have. Judges who write detailed, well-reasoned, level-headed opinions that are perfectly in accord with decades of Supreme Court precedent are routinely slammed as deranged liberal activists out to destroy America and the family. Witness the reaction anytime a judge strikes down a mandatory pledge of allegiance rule, anti-flag burning ordinance, etc. The anti-judiciary hate machine screams the same tune over any result it doesn't like.
8.23.2006 12:11pm
Bruce Hayden (mail) (www):
Medis,

I think that your view of the power of the Judiciary is a minority view. The majoritarian view, I believe, is that power of the Judiciary to be the final arbitrator of what the law is, esp. in the face of the Executive, was first asserted by CJ Marshall in Marbury. To you, the Article III grant of judicial power to the Judiciary may imply that power. But to many, it is not so clear. We have grown to accept that, over the last 203 years, but it is not (IMHO) obvious from the wording of the Constitution.
8.23.2006 12:21pm
Bruce Hayden (mail) (www):
I do stand corrected. Someone is playing the race angle here. It is not helpful to the discussion.
8.23.2006 12:25pm
Starwind:
Bruce Hayden writes:

The majoritarian view, I believe, is that power of the Judiciary to be the final arbitrator of what the law is, esp. in the face of the Executive, was first asserted by CJ Marshall in Marbury.

Insofar as the Legislature has passed statutes like FISA, which the Executive has evaded and refuses to brief the court on the merits, hiding instead behind "states secrets doctrine", then yes the power of the Judiciary is certainly the final arbitrator.

Congress spoke when it setup FISA.

The administration has covered its ears.

It is left to the Judiciary.
8.23.2006 12:31pm
neil k. (mail):
I think that the Government's 'legal' strategy on this case was really a political strategy: Put forth such an incomprehensibly weak case (protected, in part, by classification) that you're bound to lose, unless you win on standing/secrecy.

That way, if you do lose, you can count on having everybody comment on how 'odd' and 'unseemly' your decision was, and how certain it is to be overturned on appeal. A political success and not a bad outcome in court.

I have a lot of trouble figuring out what people like Althouse think Diggs Taylor should have done, in her situation. Should she have let the state pressure her into ruling in their favor on secrecy, by refusing to present any evidence? Should she have made the government's arguments for them after they refused to do so? Should she have reached a conclusion that wasn't supported by the facts presented to her?

Any of these things would have been a travesty of 'judicial bias' as is reasonably defined.
8.23.2006 12:34pm
neil k. (mail):
From what I've seen, there is an ongoing defense of Judge Taylor's opinion that "hey, Bush is an unconstitutional guy doing horrible things, so if we have to fudge the law, then so be it."

I don't understand, Falafalfocus. The decision states that the Bush administration is fudging the law, by claiming authorization under AUMF for something which it doesn't grant. FISA expressly prohibits what they're doing and their only argument is that Congress doesn't have the authority to restrict it. So this is a Constitutional matter, not a legal one.

How did Diggs Taylor fudge the law?

(P.S. Is it 'pure sophistry' to yank an introductory sentence out of context and treat it as if it were a legal argument?)
8.23.2006 12:39pm
James Lindgren (mail):

Justin wrote:

So what you're saying is that because DOJ won't even defend the facts of their program, they're above the law.


Justin,

Althouse is not saying this, and it's hard to believe that anyone as bright as you could misread her so obviously. You may be letting your outrage get the better of your legal argumentation, which ironically is what Althouse accuses the judge of doing.
8.23.2006 12:41pm
James Lindgren (mail):
Bruce Hayden,

FYI, there were many cases 1776-1800 in the US in which courts accepted the power to declare actions by legislatures and executives as illegal under state constitutions. Marshall was well aware of some of these cases and opinions when he decided Marbury. Despite some historians (such as Jack Rakove) thinking that judicial review was a Federalist invention, it wasn't. The scholarship laying this out in detail probably won't appear for a couple more years, though there are hints of this in some of Philip Hamburger's articles.
8.23.2006 12:53pm
Medis:
Bruce,

Constitutional review actually does have a history before Marbury, but that is irrelevant. My point was simply that the power of the federal courts--whatever that may be--is derived from the Constitution. And indeed, Marbury simply makes that same argument. In relevant part, the opinion states:

"The constitution vests the whole judicial power of the United States in one supreme court, and such inferior courts as congress shall, from time to time, ordain and establish. This power is expressly extended to all cases arising under the laws of the United States; and consequently, in some form, may be exercised over the present case; because the right claimed is given by a law of the United States.

. . .

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply."

So there you go. Marbury derives constitutional review from its definition of judicial power, but its authority for the proposition that the federal courts possess this judicial power is the Constitution of the United States.
8.23.2006 12:54pm
Bruce Hayden (mail) (www):

The majoritarian view, I believe, is that power of the Judiciary to be the final arbitrator of what the law is, esp. in the face of the Executive, was first asserted by CJ Marshall in Marbury.
Insofar as the Legislature has passed statutes like FISA, which the Executive has evaded and refuses to brief the court on the merits, hiding instead behind "states secrets doctrine", then yes the power of the Judiciary is certainly the final arbitrator.
Why do you think that? It was not settled precedent until Marbury v. Madison. Indeed, my understanding is that prior to that, there was a lot of debate on that subject. CJ Marshall asserted that power in Marbury, and in 203 years, we have grown to accept it. Your (and presumably Medis') interpretation is not explicit in Article III, but rather is accepted now based on those 203 years of deference to that opinion. And that is my point. I don't deny that power of the Judiciary, but rather that it is expressly granted in Article III of the Constitution.
8.23.2006 12:54pm
Falafalafocus (mail):
Neil,

I make no opinion on sophistry (at least overtly). You can therefore applaud my rationale regarding the tough issue of sophistry and why I make no opinion. But on the merits, you have pretty much proven my point. Let us assume that the administration was acting in an unconstitutional way and that the ultimate result by Judge Taylor was correct. Does that mean that she can justify by improvising the standing requirement? If so, then why waste 44 pages? I can do it in one sentence:


Because the sky is blue, the executive is acting unconstitutionally by failing to go the FISA courts.

Judge Falafalafocus

P.S., I also, sua sponte rule that Pluto is not a planet because there is a Disney Character by the same name.


But then, maybe I just don't understand that the only thing that matters for some people is stopping the executive at any cost.
8.23.2006 12:55pm
William K. Wolfrum (mail) (www):
[W]e ought to wonder why a court gets to decide what the law is and not the president. After all, the president has a sworn duty to uphold the Constitution; he has his advisers, and they've concluded that the program is legal. Why should the judicial view prevail over the president's?

This is the epitaph of Ann Althouse.

--WKW
8.23.2006 12:56pm
Bruce Hayden (mail) (www):
Medis

You are arguing using excerpts from Marbury to show that that case was not the basis of that interpretation of Judicial power. But that merely goes to prove the contrary - those broad statements are precisely the assertion of this power.
8.23.2006 1:00pm
neil k. (mail):
Unfortunately, Falafalafocus, you have only got me more confused now. I said that I wanted to know how Diggs Taylor fudged the law. It took me a few readings of your comment to extract this, but it appears you think she fudged the standing requirement. Althouse only accuses her of 'breezing through' two of the three requirements for standing, which is not quite the same as fudging them. So I'm sorry if this is so obvious that it's worth spending more sentences on mockery than explanation, but I did have a real question. How'd she fudge the law?
8.23.2006 1:06pm
Just an Observer:
Ann Althouse and I exhanged comments about her column in the thread above.

Just to be clear, I am not criticising everything Althouse wrote. The general point she made about standing as a serious matter that prevents judicial overreaching is important. In fact, I still think the prospects for ACLU v NSA likely will depend on how the standing issue plays out on appeal. I have always thought third-party standing was a serious problem for cases like this.

So while I think that if the merits are ever reached by the higher courts the NSA program will be found to be unlawful if not unconstitutional, advocates who root for such an outcome should prepare themselves for the possibility that this case will not be the one that establishes that.
8.23.2006 1:06pm
Medis:
Bruce,

What I am showing is that the decision in Marbury depended on the Constitution itself for the proposition that the federal courts are vested with the judicial power of the United States.

Now, you may disagree with the construction of "judicial power" in Marbury. I happen to think Marshall got it right (and I think the historical evidence is overwhelmingly in his favor), but that is a side issue.

What should be uncontroversial is that whether or not Marbury correctly construed "judicial power", the judicial power of the federal courts, whatever it may be, comes from Article III of the Constitution of the United States.
8.23.2006 1:07pm
Starwind:

I don't deny that power of the Judiciary, but rather that it is expressly granted in Article III of the Constitution.


Precisely what power of the Judicary expressly granted in Article III of the Constitution is not sufficient to adjudicate the legality of "TSP"?

If indeed the heretofore undisclosed "states secrets" in fact justify the TSP, then the FISA court has the purview to oversee "states secrets" related to electronic evesdropping.

If, OTOH, the heretofore undisclosed "states secrets" fall outside the purview of FISA, the administration has a burden to demonstrate that its warrantless evesdropping is constitutional, and constitutional issues are the purview of the Judiciary.

The administration does not get to fabricate "door number 3" behind which an unsubstantiated claim of "states secrets" can evade FISA review and simultaneously evade constitutional review when warrantless searches violate Amend 4.

If the Administation wishes to argue that its "states secrets" violate neither FISA nor Amend 4, it is going to have to brief the merits to somebody, and that somebody is the Judiciary.

But as long as the Adminstration elects to avoid such a brief (to either FISA or Judge Taylor), then summary judgement for the plaintiff is the logical, lawful consequence. And that is precisely the power of the judicary under Art. III.
8.23.2006 1:11pm
Bruce Hayden (mail) (www):
I do not believe that Ann is saying that the Judicial Branch doesn't have the power to determine whether the Executive is acting illegally, but rather, is asking why they do.

Putting our discussion of Marbury v. Madison aside for a minute, I would suggest that the reason that the Judiciary has that power is that the American people allow it that power. And they allow it that power because they believe and trust that it will dispassionately, analytically, and in a non-partisan manner make those determinations.

The problem then with Judge Taylor's decision from this point of view is that the opinion does not appear to be dispassionate, analytical, or non-partisan. It may be, but that is irrelevant to Ann's point. It does not appear to be. And those characteristics are a good part of the basis for Judicial power in our country. So, without this appearance of neutrality, it is easy to ask the question of why we should trust the opinion of one judge nominated to the bench by a political enemy of the President and confirmed by a Democratic Senate over that of a popularly elected President? And then, it is easy to generalize, and ask why we should be trusting unelected judges with life tenure to answer questions of national security in the first place. And that, in the end, is the ultimate danger of the opinion - that the power of the Judiciary is diminished as a result.
8.23.2006 1:13pm
Agog (mail):
For any who doubt the left-leaning political bias underlying Judge Diggs-Taylor's opinion in the NSA case consider her actions in Grutter v Bollinger, one of the two University of Michigan affirmative action cases.

Judge Diggs-Taylor attempted to engineer unprecedcented, intra-court judge shopping that was calculated to remove the affirmative action case from a judge the university viewed as bad to one the university viewed as good. This was done AFTER Judge Taylor recused herself because her husband was a university regent and ostensibly a party to the case the judge was trying to manipulate.

This caused one of her fellow judges in the Eastern District, Bernard Friedman, to issue an opinion labelling Judge Diggs-Taylor's actions "unlawful".

Have any readers ever heard of another federal judge having her actions publicly described as "unlawful" by a colleague on the bench?
8.23.2006 1:16pm
Medis:
Bruce,

I would agree in some general sense that the power of the federal courts is granted by the people of the United States.

But once again, you are skipping a crucial middle step: the Constitution of the United States, which is the means "we the people" have decided to use when allocating the powers of government.

And if you are suggesting that "we the people" could simply decide one day to invalidate the Constitution, or at least Article III, and start over--actually, I agree with that too, since that is how the Constitution itself came about (we just decided to dump the Articles of Confederation and start over).

But if that is your idea, then you should be clear about what you are suggesting--namely, that if we decide one day that we no longer like Article III and the independent judiciary it creates, we could change (or simply dump) the Constitution.
8.23.2006 1:25pm
Bruce Hayden (mail) (www):
Medis,

I am not suggesting that Marshall got it wrong. It is the system that I grew up in, and it works fairly well. Rather, I think that you and I are arguing about whether the power of the Judiciary to determine whether a law is Constitutional and whether the other branches violate a law or the Constitution is explicit in Article III or only made so by Marbury.

In most cases, the difference between the two is irrelevant. But maybe not in this one. My theory is that the power of the Judiciary is "soft power" based on acceptance of its power by the American people. As you probably remember, I have asked before, what happens if the Judiciary ultimately rejects the Administration's position here? Esp. if the President takes his oath to defend, preserve, and protect the Constitution (and thus the country) to be more important than deference to the Judiciary? And, therefore, defies the Judiciary? Remember, he has the guns and the troops. He most likely also has Congress and the American People on his side in this dispute. What happens then? Will the House impeach? Highly unlikely.

In the end, the Judiciary only has as much power as the American people grant it. At present, they accept that it has the power to determine whether the Executive (or Congress) have violated statutes or the Constitution. But that is not set in stone. They could lose that power in a heartbeat if a president is able to defy them with impunity.

Coming full circle, I would suggest that the reason that our discussion is relevant to that is that if the power of the Judiciary to make these determinations is really a result of assertion of that right by CJ Marshall, then such a power shift would merely necessitate overriding that precedent. Whereas, if the power grant were explicit, our entire Constitutional form of government would be called into question.
8.23.2006 1:35pm
eddie (mail):
The real irony is that as a professor of law Ms. Althouse has even outdone the beleaguered judge in providing an completely unanalytical and unsubstantiated "decision". This might have been an appropriate repsonse to a first year law exam in Con Law, but does not address the facts and the law as it applies in this particular case. These matters are simply not important to the result that Ms. Althouse wishes to reach: ad hominem dismissal of the opinion.
8.23.2006 1:37pm
Bruce Hayden (mail) (www):
Medis,

I am not suggesting that such a change would repeal Article III, but rather that it would change its interpretation. And it isn't really a question of an independent Judiciary, but rather, whether the Judiciary will continue to have the power to determine whether or not the Executive and/or Congress have violated any laws or the Constitution. In short, quasi-Judicial Supremacy.
8.23.2006 1:40pm
Starwind:
Bruce Hayden writes:

The problem then with Judge Taylor's decision from this point of view is that the opinion does not appear to be dispassionate, analytical, or non-partisan.

Au contraire! Judges of all creeds at all levels are often immensely passionate about violations, especially constitutional violations. And the DoJ is directly responsible for the commensurate analysis of its empty argument, and the DoJ further set up the appearances of "partisanship" when it (not Judge Taylor) presumed to argue her court had no purview and expected her to travel to their offices to read their brief. That she pointed out that such "royal" expectations have no basis in the US court system is not unsurprising.

So, without this appearance of neutrality, it is easy to ask the question of why we should trust the opinion of one judge nominated to the bench by a political enemy of the President and confirmed by a Democratic Senate over that of a popularly elected President?

Because the "appearance of neutrality" strawman is not worth the bandwidth it consumes, and the Administration has had ample opportunity (5 years?) to brief either FISA or the courts on the merits of its TSP and has failed to do either and even declined to modify FISA.

The President is charged with faithful execution of our laws, not the castigation of judges seeking to apply those laws to his executive orders. The appearance of his malfeasance via the TSP, rendition, etc is far more odious than any judge's sharp criticism of his presumptive behavior.
8.23.2006 1:47pm
Medis:
Bruce,

How exactly would you define "judicial power of the United States" and interpret the proposition "The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority"?

I submit that if the President simply starts ignoring the federal courts, and Congress lets him do it, and the people let the President and Congress do that, then we would have exactly what you described: "our entire Constitutional form of government would be called into question."

Indeed, not just called into question, but invalidated. Because unless you can come up with a reasonable definition of Article III which would allow the President and Congress to start simply ignoring the courts, then I think that development could be nothing but a populist invalidation of Article III. And if we can invalidate Article III without amending the Constitution according to its own requirements, then the Constitution is no longer supreme law.

Fortunately, I think you are completely wrong about all that--I highly doubt the people will stand for the President ignoring the courts. And equally fortunately, I think the President shares my view, which is why he is doing his best to avoid having the courts actually speak on the issues at hand.
8.23.2006 1:49pm
Bruce Hayden (mail) (www):
Coming back to Judge Taylor, the relevance of Medis' and my discussion here is that the Judiciary's power to determine whether the Executive (or Congress) has acted illegally is soft power, based on (IMHO) 200+ years of acceptance of that power by the American People. But that acceptance is based, to a very large extent, upon the appearance of an independant Judiciary, that sits above the political squabbles, and analytally and dispasstionately determines these questions.

The basic problem with Judge Taylor's decsion from this point of view is that it appears just the opposite - political and lacking in dispassionate analysis. While this may be not be accurate, it is easy to come away with that opinion, and that is what is important here, to my discussion with Medis', and, IMHO, with Ann's column. To the extent that the opinion appears to be politically motivated and lacking in dispassionate analysis, it tends to detract from the appearance of impartiality and objectivity cultivated by the Judiciary in order to bolster their soft power here. And that is the risk that I see from it.
8.23.2006 1:50pm
Bruce Hayden (mail) (www):
eddie

Two different audiences, and two different word count constraints.
8.23.2006 1:52pm
Bruce Hayden (mail) (www):
Eddie, I have stolen Ann's response to just such a question on her own blog:
To the commentator who wanted a more detailed discussion of the legal issues, with citations, etc.: There's a word limit on the op-ed page you know! You try writing 900 words with detailed discussion of legal doctrine and making it readable and interesting.
8.23.2006 1:55pm
Blindgambit:
Medis,
You mention the President and Congress ignoring the "courts" several times in your latest post. It's my understanding Article III creates the Supreme Court, and leaves to Congress the creation of other courts. Was the plural use in your post an indication that you don't believe, once created, Congress and the President, in the form of duly enacted laws, can strip lower courts jurisdiction to, in essence, ignore them? This is a question I often ponder myself, and I was wondering if the plural use of federal courts in your post was an indication of your own view.
8.23.2006 1:57pm
Medis:
Bruce,

Yes, the relevance of your contention that judges possess only "soft power" is that the President and Congress could ignore the courts without undermining the Constitution. But, of course, the fact that Article III is a part of the Constitution makes that claim a little difficult to swallow, unless you can come up with an interpretation of Article III which somehow doesn't give the courts any power over the rest of the government.

On that issue, I also note this: "The judicial power shall extend . . . to controversies to which the United States shall be a party".

Blindgambit,

Jurisdiction stripping is a complicated subject which I won't try to address here, but Congress certainly was not bound to create lower federal courts, and probably could abolish them entirely. I am using the plural when discussing the power of the federal courts just because Article III explicitly vests the judicial power of the United States in whatever lower courts have been created ("The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish."). So, since lower courts do exist, it is proper to speak of the power of the federal courts (plural).
8.23.2006 2:07pm
Starwind:
Medis notes dryly:

unless you can come up with an interpretation of Article III which somehow doesn't give the courts any power over the rest of the government.

Yes, that would be the not-quite-checks plus imbalances view of constitutional interpretation.
8.23.2006 2:13pm
Medis:
Starwind,

I think the Administration officially calls it the "We welcome their input" theory of the Constitution.
8.23.2006 2:26pm
Sebastian Dangerfield (mail):
OK, first, I'll just get out of the way that I believe the NSA eavesfdropping program to be deeply, badly illegal and I also believe that Judge Taylor executed an embarrassingly bad, cack-handed decision. Furhter, it's no defense of the opinion to say that the DoJ failed to make any arguments on the merits -- for, if a judge is going to deny a stay of any merits-based rulings until serious jurisdictional questions are resolved and then go ahead and decide the merits based on one side's briefing on an issue of this magnitude, that judge damn well should carefully and intellectually honestly raise the counter-arguments on her own, and do so fairly -- if only out of self-protection.
The DoJ's failure to make merits arguments is, however, a defense to Althouse's charge that Taylor ignored arguments fairly put to her by the DoJ. That Althouse penned this column without grasping the procedural history of the case (or in spite of grasping it) is at least (litotes alert) as embarrassing as Taylor's failure to insert "Chief" before "Justice" in referring to Ealr Warren. (Indeed of all the rather glaring boners in the decision, Althouse's choice of that one to highlight is pretty bizarre.)
8.23.2006 2:30pm
Sebastian Dangerfield (mail):
Oh damn, I forgot the punchline: I really don't think much of Althouse's argument that the fact that a (possibly dotty) district judge in Michigan has rendered a pretty crappy opinion renders the entire concept of judicial review of executive action suspect, so why don't we just let the president have the final word on declaring what the law is. Leaving aside the fact that there are multiple avenues for correction of a bad trial court decision, how exactly does Althouse defend the notion that one dotty district judge is worse than one dotty president?
8.23.2006 2:33pm
Bruce Hayden (mail) (www):
Medis,

First, thanks for addressing some of my real issues, instead of interjecting a lot of other issues that don't really bear on our discussion. My problem right now is that I, along with probably most of us, view Article III through the lens of 203 years of post-Marbury jurisprudence. So, yes, it is hard to see how Article III would not provide the Judiciary that power.

That said, Marbury v. Madison has been sold to generations of law students as being the place where this power was first asserted by the Supreme Court, and, therefore, is inseperable from that power. There may be better arguments for that than I am making - I have to assume there are, because of all those Con Law profs teaching this. But I am clearly not well enough versed here to overcome your contention. Given that, I am (hopefully) dropping this line of reasoning for the present.
8.23.2006 2:42pm
JPS3L (mail):
To the extent people would like a more convincing articulation of why Judge Taylor's opinion was so inept, the following artice provides a detailed account of the opinion's shortcomings.

National Review Online
August 18, 2006, 3:47 a.m.

Amateur Hour?
A judge's first-year failing-grade opinion.

By Bryan Cunningham


The Honorable Anna Diggs-Taylor probably means well. The lone judge in American history to order a president to halt in wartime a foreign-intelligence-collection program that has undoubtedly saved lives probably sympathizes with the journalists, and others, who are suing to stop the Terrorist Surveillance Program (TSP) in which NSA intercepts foreign-U.S. terrorist communications. She probably feels in her heart the program is wrong, and undoubtedly hears the footsteps of the federal judicial panel moving towards taking this case away from her and consolidating it with others.


We can sympathize with her motives, and even share some of her gut feelings of uneasiness about the program. But we cannot accept the stunningly amateurish piece of, I hesitate even to call it legal work, by which she purports to make our government go deaf and dumb to those would murder us en masse. Her bosses on the Court of Appeals and/or the United States Supreme Court will not accept it.

Much will be said about this opinion in the coming days. I'll start with this: I wouldn't accept this utterly unsupported, constitutionally and logically bankrupt collection of musings from a first-year law student, much less a new lawyer at my firm. Why not? Herewith, a start at a very long list of what's wrong with Judge Taylor's opinion.

Process Fouls. When you sue your plumber over a disputed $50 invoice, before deciding who wins, the judge is required to jump through some minor constitutional hoops like actually hearing evidence (as opposed to press reports), holding hearings, and reading and understanding the briefs filed and the laws at issue. Judge Taylor appears to have taken none of these rudimentary steps before issuing one of the most sweeping wartime legal rulings in our nation's history. Experts on both sides agree it is impossible to decide the crucial Fourth and First Amendment issues in this case without detailed, factual knowledge of precisely what the government is doing (see, e.g., the brief I filed with the Washington Legal Foundation, at www.morgancunningham.net, and the excellent testimony of David Kris, at http://www.fas.org/irp/congress/2006_hr/index.html). Judge Taylor apparently needs no more facts than what she reads in the papers.

Worse, the judge clearly failed to do enough homework to understand the Foreign Intelligence Surveillance Act itself, much less the Fourth Amendment. She gets basic provisions of the statute itself wrong, e.g., apparently believing that a provision explicitly dealing with foreign agent/non-U.S. persons communications constitutes an "exception" to FISA's warrant requirements. She also seems to make the elementary and fatal mistake made by many commentators, that the government can, under FISA, listen in on conversations for 72 hours without meeting FISA's substantive and procedural tests. This is simply false. NSA cannot lawfully, under FISA, listen to a single syllable of a covered communication until it can prove to the Attorney General (usually in writing) that it can jump through each and every one of FISA's procedural and substantive hoops. These basic errors could have been corrected had the court bothered to gather any evidence or hold substantive hearings.

More worrisome still are the judge's breathtaking mistakes in analyzing the Fourth and First Amendments—errors that would earn our first-year law student an "F." Here's one of several examples: The judge asserts that the Fourth Amendment, in all cases, "requires prior warrants for any reasonable search, based upon prior-existing probable cause." She cites no legal authority whatsoever for this colossal misstatement of the law, because none exists. Instead, there are numerous situations where our courts have found no prior warrant is required, so long as a search is "reasonable." Fatal to her position is the very Supreme Court case she herself cites. This landmark 1972 electronic-surveillance decision, the Keith case, makes clear that, though it establishes a warrant requirement for purely domestic security cases (decidedly not what the TSP is, raising the alarming possibility the judge may think the TSP is a "domestic" program), the Fourth Amendment does not always require a prior warrant for government searches. Rather, the need for warrants depends on a balancing of the government's legitimate needs, such as protecting us from attack, against other constitutional interests.

Lest there be any doubt as to whether Keith supported Judge Taylor's view about the warrant requirement for communications with overseas terrorist groups, the Keith court stated that "the instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country."

While Keith at least left open the question, a post-FISA case, also cited by Judge Taylor herself (In re Falvey), could not have more clearly dispensed with her claimed warrant requirement: "When, therefore, the President has, as his primary purpose, the accumulation of foreign intelligence information, his exercise of Article II power to conduct foreign affairs is not constitutionally hamstrung by the need to obtain prior judicial approval before engaging in wiretapping."

Apparently Judge Taylor failed to read that portion of the Falvey opinion. She makes similarly striking mistakes on the issues of standing and separation-of-powers. Which brings us to the heart of the problem with the judge's missive.

Ignoring Contrary Authority. Under legal-ethics rules, deliberately failing to call to a court's attention legal authority contrary to one's position is grounds for disciplinary action. In addition to the above, here are several more examples of this unpardonable legal sin in Judge Taylor's opinion.

Appeals Court Cherry-Picking. The judge relies heavily on the D. C. Circuit Court of Appeals plurality (less than majority) opinion in Zweibon v. Mitchell. That case suggests in dicta (language not necessary to decide the case, and, therefore, of no precedential value) that all electronic surveillance, even for foreign intelligence involving an overseas connection, may require prior warrants. Judge Taylor fails to mention, however, that, while Zweibon didn't actually reach this question, the Foreign Intelligence Surveillance Court of Review (the appellate court set up explicitly to have the foreign-intelligence and national-security expertise Judge Taylor clearly lacks) did. Here's what it said (in 2002): "[A]ll . . . courts to have decided the issue, held the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.'

Utterly ignoring this 2002 FISA Court of Review opinion, as well as the numerous 1970s-'80s federal appeals and district court decisions directly opposed to her position, Judge Taylor offers instead an extended discussion of a 1765 case from England.

Selective Reading Redux. The judge discusses at length Justice Jackson's concurring opinion in Youngstown Sheet and Tube, without bothering to mention:

—that Justice Jackson himself, in that very opinion, disavowed the application of the opinion beyond that case's primarily domestic context (seizure of U.S. steel mills in the face of a union strike);

—that our courts long after Youngstown emphasized its limitations to primarily domestic cases and that other legal authorities more appropriately govern primarily foreign-affairs/foreign-intelligence-collection cases, such as the TSP; or

—most importantly, the entire line of Supreme Court and other decisions, most famously including Curtiss-Wright Export, cited many times since Youngstown, making clear the president's constitutional primacy in foreign-affairs/foreign-intelligence collection, upon which neither Congress nor the courts may intrude.

Lawyers and judges are free to argue that contrary authority does not control a particular decision. They are not free ethically to disregard the vast majority of cases rejecting their position, selectively citing the single case arguably supporting them.

Trivial Pursuit. Perhaps most disturbing about the judge's opinion is the trivial way it treats the Fourth and First Amendments to our Constitution. In landmark cases balancing wartime needs with cherished principles in the Bill of Rights, our great judges and justices have painstakingly analyzed all applicable authority, soberly balancing our crucial national interests and values. Judge Taylor spends a total of three double-spaced pages addressing the Fourth Amendment and little more than two addressing the First Amendment. Her reasoning, to the extent one can follow it, is little more than one would find in watching a surreal "Schoolhouse Rock" episode. The Fourth Amendment prohibits unreasonable searches. All searches without warrants are unreasonable (which, as noted above, is flatly wrong). Therefore, with no case support cited, Judge Taylor finds the TSP unconstitutional. The First Amendment protects free speech, which, defying the dictionary meaning of the word, she asserts the TSP "regulates." FISA prohibits targeting persons for surveillance solely for activities protected by the First Amendment (FISA, of course, being a statute, not a constitutional provision, and the administration having stated publicly they do not target individuals on that basis). Therefore, says Her Honor, the TSP is unconstitutional.

Such trivial (if not incomprehensible) legal analysis would be unacceptable in our $50 plumbing-bill case. Using it to justify shutting down a program protecting us from terrorist attack in war is tantamount to an abrogation of the judge's oath to support and defend the Constitution. Though unlikely based on what has been publicly reported, it is possible that a court armed with all the facts could conclude that the TSP runs afoul of the First or Fourth Amendments. It is not possible to decide that based on press reports and platitudes.

Amateur hour? Judge Taylor, a law professor, has been on the bench since 1979. She is decidedly not an amateur. So, how to explain her first-year failing-grade opinion? Regrettably, the only plausible explanation is that she wanted the result she wanted and was willing to ignore and misread vast portions of constitutional law to get there, gambling the lives and security of her fellow Americans in the bargain.

Whatever Judge Taylor's motives, it is critical to understand the impact of her decision, were it allowed to stand. Among many damaging results, the Terrorist Surveillance Program, publicly credited not 72 hours ago with helping to prevent the "9/11 Part 2" British airline bombings, will be shut down and our enemies will know it. Worse, neither politically accountable branch of government (even working together) would be able to modify FISA in a way that did not require prior judicial warrants based on probable cause and particularity as to the person targeted. In other words, there would be no lawful way, short of amending the Constitution, to ever collect catastrophic-terrorist-attack warning information unless we knew in advance it was coming, and the identities of the precise individuals who were going to communicate it.

As Judge Taylor's new favorite justice, Robert Jackson himself, warned, the courts should not "convert the constitutional Bill of Rights into a suicide pact." I will put my daughters to bed tonight confident that the Court of Appeals and our Supreme Court will not allow Judge Taylor's giant step in that direction to stand.

— Bryan Cunningham served in senior positions in the CIA and as a federal prosecutor under President Clinton, and as deputy legal adviser to the National Security Council under President George W. Bush. He is a private information security and privacy lawyer at Morgan &Cunningham LLC in Denver, Colorado, and a member of the Markle Foundation Task Force on National Security in the Information Age. Along with the Washington Legal Foundation, he filed an amicus brief in this case, and has testified before the Senate Judiciary Committee on the Terrorist Surveillance Program.

BTW, you know you dropped the ball when Prof. Tribe (Harvard law prof.) describes the opinion as being an "unusually casual and surprisingly breezy way of dispatching the Bush administration's legal defense of its NSA warrantless surveillance program;" when Prof. Jack Balkin (Yale law prof.) writes, "Although the court reaches the right result-- that the program is illegal, much of the opinion is disappointing, and I would even suggest, a bit confused;" and Prof. Marty Lederman (Georgetown law prof.) notes, "The court's opinion in support of the judgment leaves much to be desired." If the judge can't even win over the support of our most liberal academics specializing in this area of the law, she has little chance of seeing her opinion gaining any real intellectual support (except, of course, from the intelligencia cabined over at the New York Times).
8.23.2006 2:57pm
neil k. (mail):
A judge, unlike a law student, has to write her opinion based strictly on the case that was presented to her. (At least, if she's being ethical.) I think that Cunningham's article is less persuasive than Althouse's, and does a good job of explaining Greenwald's enmity to law profs.
8.23.2006 3:05pm
Medis:
Cunningham writes:

"Ignoring Contrary Authority. Under legal-ethics rules, deliberately failing to call to a court's attention legal authority contrary to one's position is grounds for disciplinary action.
. . .
Lawyers and judges are free to argue that contrary authority does not control a particular decision. They are not free ethically to disregard the vast majority of cases rejecting their position, selectively citing the single case arguably supporting them."

OK, so I'll just find Dames &Moore, Hamdi, and Hamdan in Cunningham's discussion of Youngstown ... hmmm.
8.23.2006 3:17pm
JPS3L (mail):
Neil,

While it is true that a judge is confined to the case before her, it is also true that she has an obligation to discharge her duties ethically. For a judge to mischaracterize cases and utterly ignore an inconvient case from the FISA court that should have been largely dispositive betrays a rush to judgement that supports a personal preference rather than a properly support legal judgement. Here are a few examples of this unethical behavior from the Cunningham article:

1) "Appeals Court Cherry-Picking. The judge relies heavily on the D. C. Circuit Court of Appeals plurality (less than majority) opinion in Zweibon v. Mitchell. That case suggests in dicta (language not necessary to decide the case, and, therefore, of no precedential value) that all electronic surveillance, even for foreign intelligence involving an overseas connection, may require prior warrants. Judge Taylor fails to mention, however, that, while Zweibon didn't actually reach this question, the Foreign Intelligence Surveillance Court of Review (the appellate court set up explicitly to have the foreign-intelligence and national-security expertise Judge Taylor clearly lacks) did. Here's what it said (in 2002): "[A]ll . . . courts to have decided the issue, held the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.'

Utterly ignoring this 2002 FISA Court of Review opinion, as well as the numerous 1970s-'80s federal appeals and district court decisions directly opposed to her position, Judge Taylor offers instead an extended discussion of a 1765 case from England."

2)"The judge discusses at length Justice Jackson's concurring opinion in Youngstown Sheet and Tube, without bothering to mention:

—that Justice Jackson himself, in that very opinion, disavowed the application of the opinion beyond that case's primarily domestic context (seizure of U.S. steel mills in the face of a union strike);

—that our courts long after Youngstown emphasized its limitations to primarily domestic cases and that other legal authorities more appropriately govern primarily foreign-affairs/foreign-intelligence-collection cases, such as the TSP; or

—most importantly, the entire line of Supreme Court and other decisions, most famously including Curtiss-Wright Export, cited many times since Youngstown, making clear the president's constitutional primacy in foreign-affairs/foreign-intelligence collection, upon which neither Congress nor the courts may intrude."
8.23.2006 3:22pm
JPS3L (mail):
Medis,

Cunningham was not writing a legal opinion, but an article that provided concrete examples of shortcomings in a legal opinion. I wouldn't expect an article like Cunningham's to rewrite the entire opinion for Judge Taylor, thus there would be no reason to discuss every case that would be on point. Indeed, even Larry Tribe wrote,

"Had I been in her place, I never would have reached the difficult First and Fourth Amendment issues that she disposed of so summarily when a powerful, and indeed all but impregnable, statutory path to decision at least appeared to be available under the FISA. I also would have been less ready to find standing on the part of the complainants without much more meticulous analysis than Judge Taylor undertook; I would obviously have grappled with the "special needs" exception if I had reached the Fourth Amendment claim; and I can't imagine not addressing the 2002 decision by the FSIA Court of Review."

The point is that even if you completely agrue with the outcome, this was a risible opinion.
8.23.2006 3:28pm
neil k. (mail):
Since JPS3L has produced some fair-usable excerpts of the article (thanks, by the way) perhaps it would be a good idea to remove his comment that reproduces the article in full...

I am not a lawyer, but it's my impression that including counterarguments which were not made by the defendants in her decision would have been a clear overstep. The judicial system wouldn't work very well if a judge had full discretion to keep coming up with her own arguments until the 'correct' decision is reached.

If I'm right about this, it suggests that an opinion that appears biased is an inevitable consequence of a case where one side declined to respond to the other's arguments (a sort of case which must be exceedingly rare in a rational legal system). But someone here can probably tell me why I'm not right, if indeed I'm not?
8.23.2006 3:35pm
neil k. (mail):
By the way, since Judge Taylor reviewed some classified evidence, including much of the Government's briefs, nobody can conclusively say what they would have done differently, can they?
8.23.2006 3:38pm
JosephSlater (mail):
Again, I'm not a big fan of the reasoning of Diggs's opinion, but Cunningham beginning his piece claiming (with no evidence) that the decision struck down something that has "undoubtedly saved lives" makes it pretty clear where his partisan agenda is.
8.23.2006 3:49pm
David M. Nieporent (www):
A judge, unlike a law student, has to write her opinion based strictly on the case that was presented to her. (At least, if she's being ethical.)
False. Judges cannot invent facts not presented to them (although they can take judicial notice of obvious ones), but they can consider any legal argument they choose. Appellate courts can affirm or reverse a lower court on a different legal theory than was made by either side. Whether they do is a prudential question, not an ethical one.

(Indeed, certain legal issues -- subject matter jurisdiction, for instance -- must be addressed by the courts, whether either party ever mentioned, let alone briefed, the issue.)
8.23.2006 3:49pm
Medis:
JPS3L,

Interestingly, in the interests of economy, Cunningham seems to have omitted all of the cases which make a hash out of his sweeping claim that Youngstown is restricted to domestic issues. Funny how that worked out.

Of course, I'm not going to report Cunningham to his Bar, because that wasn't a court submission. But even in an article, it strikes me as a little odd to commit the very ethical sin one is trying to pin on another. I'm tempted to mention "motes" and "beams"--but I don't want to be accused of cherry-picking the Bible.

neil k.,

Whether or not a judge can raise issues and arguments sua sponte is tricky, and there are some specific cases where judges are authorized to do so. But at a minimum, usually a judge should put the adverse party on notice and let them respond. And as a prudential rule, I think it is usually best for a court to let the parties control the issues and arguments, unless otherwise required by law.
8.23.2006 3:51pm
David M. Nieporent (www):
but Cunningham beginning his piece claiming (with no evidence) that the decision struck down something that has "undoubtedly saved lives" makes it pretty clear where his partisan agenda is.
The fact that he published in NRO makes it pretty clear where his partisan agenda is, but that's irrelevant to the legal points he raised, isn't it?


I have to say, though, that his initial implication that Diggs' actions are unprecedented is slightly off; nothing is as ridiculous as Justice Douglas's attempt to enjoin the Vietnam War.
8.23.2006 3:52pm
Earl (mail):
neil:

With respect to the peception of bias, you seem to be trying to pin the bias on the wrong donkey.

It's not that her opinion seems biased because she failed to consider counterarguments so much as her reaching conclusions that don't logically follow from her analysis.
8.23.2006 3:59pm
David M. Nieporent (www):
Interestingly, in the interests of economy, Cunningham seems to have omitted all of the cases which make a hash out of his sweeping claim that Youngstown is restricted to domestic issues. Funny how that worked out.

Of course, I'm not going to report Cunningham to his Bar, because that wasn't a court submission. But even in an article, it strikes me as a little odd to commit the very ethical sin one is trying to pin on another.
But he didn't do that. First, the "sweeping claim" actually said "primarily," not "restricted to." Second, he didn't issue a legal opinion; he argued that she failed to address these points in her opinion. One doesn't need to address one's adversaries' arguments in order to make the point that the judge didn't consider one's own arguments.

If his argument were, "The government should win because of X, Y, and Z," then you're right -- it would be the same "ethical sin" to fail to address A, B, and C, which limit X, Y, and Z. But that wasn't his argument. His argument was, "The judge ignored X, Y, and Z." The fact that there may be counterarguments to X, Y, and Z does not justify completely ignoring the arguments themselves, as Taylor did.
8.23.2006 4:00pm
neil k. (mail):
I have heard both criticisms, Earl. I was responding to the Cunningham article which seemed to mostly fault her for excluding counterarguments.

Thanks to Medis and David M. for clarifying issues for me.
8.23.2006 4:05pm
Rob Crocker (mail):
For the arguments going back and forth abou the Judiciary's power to review law and Consitutional issues I think people are talking past each other.

Neither side is arguing that the Judiciary doesn't have this power. The issue is in the exercise of that power.

The Judiciary cannot simply say that law X or action Y is unconstitutional. They have to actually address the law or action and the portion of the Constitution it violates. They then have to address previous legal precedent as it may apply to the case at hand.

Althouse's complaint (and the complaint of many other legal analysts) is that this ruling does no such thing. Orin Kerr has argued long that the AUMF probably does not give the Executive authority to ignore FISA, but this is by no means 100% sure. This being the case, the ruling's rather facile conclusion that the TSP violates FISA fails to address this ongoing contention.

The theory that leads to a First Ammendmant violation also seems rather light in its explanation. Does this mean that the conclusion is wrong? No, just that there's very little behind the conclusion to see how the judge got from point A to point B.

This goes back to the old math cartoon where the proof is up on the black board. Step 2 reads "A miracle occurs" and then you jump to the end. Even if that answer at the end is 100% correct you still have to go through all of the intervening steps to have confidence in that conclusion.
8.23.2006 4:05pm
James Lindgren (mail):

Sebastian wrote:

I really don't think much of Althouse's argument that the fact that a (possibly dotty) district judge in Michigan has rendered a pretty crappy opinion renders the entire concept of judicial review of executive action suspect, so why don't we just let the president have the final word on declaring what the law is.


Do you really think that Althouse was arguing that we should "just let the president have the final word on declaring what the law is"?
8.23.2006 4:12pm
JPS3L (mail):
Medis,

It has been widely reported that the plot to blow up ten commercial airplanes from the U.K. to the U.S. was thrawted, at least in part, due to the Terrorist Surveillance Program, which what lead to the initial information that caused the Brits to begin their investigation. I would also note that Mr. Cunningham wored in the CIA and was a federal prosecutor under President Clinton, before working as deputy counsel to the National Security Council under President Bush. The point is that he seems less driven by party politics (having wroked for both Dem and Rep administrations) than by what his years of experiance in national security and law enforcement have taught him. But, as was pointed out, that doesn't really matter because his legal analysis is sound. Besides which, even if you do think that his article was the product of partiniship, then listen to liberal legal heros like Jack Balkin (Yale) and Larry Tribe (Harvard), or even Marty Ledermen (Georgetown) who worked on the Hamdan case. They all say that the opinion is a joke that hurts its chances on appeal. Again, even if you are a Michael Moore Liberal that is titilated by any opportunity to stick a sharp stick in President Bush's eye, you have to conceed that this opinion was a poor piece of legal scholarship that hurts your cause.
8.23.2006 4:15pm
Just an Observer:
JPS3L,

As for the disembodied fragment of dicta from Sealed Case, the meaning of which even in context is puzzling, precisely what does Cunningham think Judge Taylor was supposed to make of it? That FISA is unconstitutional? DOJ never claimed that it is! Taylor correctly noted that the government brief merely "suggested" it.

Having determined, based on undisputed facts, that the four corners of FISA were violated, then disposing of the thinly briefed argument that the AUMF somehow trumped FISA, Taylor properly analyzed this as a Youngstown Category 3 case.

In such a situation, Justice Jackson said: "Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject."

Taylor hardly could have found FISA to be unconstitutional based on a mere suggestion.

No president has ever claimed that FISA is unconstitutional. Since Bush is the first president to violate it, if he wants to make that constitutional argument his lawyers will have to show up in court and actually make it.

Quite obviously, they do not do so because that would tee up the issue for Supreme Court review. If this court ever confronted that question squarely, Bush's "argument" would be smacked down 8-1 or 9-0.
8.23.2006 4:24pm
JosephSlater (mail):
David M. N.:

Perhaps I should have put it this way. Cunningham beginning his piece with an inflammatory yet entirely unsupported claim might make one skeptical of further claims he makes (insert here Medis's points about Cunningham's treatment of Youngstown and its progeny).

JPS3L:

No, it isn't established that any terrorist plot was foiled by the parts of the program that are alleged to be illegal. You make the mistake of conflating opposition to certain legally questionable warrantless surveillance with opposition to surveillance generally (see also the suggestion that opposition to Iraq war = failure to oppose terrorism).

But maybe we can all agree: it wasn't a very well-reasoned opinion, but the 6th Cir. (and probably the Supremes) will get a chance to sort it out.
8.23.2006 4:27pm
Mark Field (mail):

Appellate courts can affirm or reverse a lower court on a different legal theory than was made by either side.


Hi David.

I've made this point before, but it's important so I'll say it again: the standard of appellate review, which David correctly states, does not requre Judge Taylor to use correct reasoning. The appellate standard ONLY requires that her result be correct on any legal ground. I am mystified that people continue to demand more of Judge Taylor than the legal system itself demands.

I want to be clear about this. We can and should demand a higher standard from the Supreme Court; I agree with Rob Crocker when it comes to that Court. Its decisions are final and its authority depends, in substantial part, on its use of convincing argumentation. But no one has ever held District Courts to any such standard; as others have noted, her opinion was much more detailed than is common in ordinary civil cases.


It has been widely reported that the plot to blow up ten commercial airplanes from the U.K. to the U.S. was thrawted, at least in part, due to the Terrorist Surveillance Program, which what lead to the initial information that caused the Brits to begin their investigation.


I'm going off memory here, but I did read that the surveillance information obtained by the US was obtained in compliance with FISA.
8.23.2006 4:34pm
Medis:
David N.,

Cunningham makes several positive claims about the caselaw subsequent to Youngstown which are directly contradicted by the cases I mentioned, and which he failed to mention or consider. In so doing, I believe he does in fact commit the exact sin he accuses Judge Taylor of committing.

To be clear, I don't think there is anything wrong per se with writing an article explaining how there are many relevant cases which Judge Taylor did not discuss (although as others have noted, that is not necessarily her fault). But Cunningham could have done that without misrepresenting the caselaw (by omitting the cases which don't support his personal views and implying that the caselaw is one-sided), so I don't see any justification for omitting those cases if his only goal was to point out that Judge Taylor's opinion did not discuss a lot of important cases.

JPS3L,

I didn't accuse Cunningham of being a partisan, and I actually have no idea what his personal politics might be. What I have suggested is that his article does exactly what he criticizes Judge Taylor for doing (namely, omitting important cases that contradict his conclusions). What you conclude about Cunningham from that fact is up to you.
8.23.2006 4:41pm
OldManRick (mail):
For those who chose to highlight their limited reading skills, the oft quoted sentence:

[W]e ought to wonder why a court gets to decide what the law is and not the president. After all, the president has a sworn duty to uphold the Constitution; he has his advisers, and they've concluded that the program is legal. Why should the judicial view prevail over the president's?

is a lead in to the next paragraph which explains

This, of course, is the most basic question in constitutional law, ... The judges have this constitutional power only because they operate by a judicial method that restricts them to resolving concrete controversies and requires them to interpret the relevant constitutional and statutory texts and to reason within the tradition of the case law. . . .

I find the need here quote this obvious rhetorical question out of context (and to slam Althouse) to be highly unethical. This is not a game of gotcha, this is a serious question that requires a serious answer.

As many commentators have pointed out, there is reason to believe that exposing details about or shutting down this program would degrade our counter-terrorism efforts. You may believe the program is illegal. You may believe that there is no intellegence gain from this program. You may believe that the FISA court can respond to the needs of this program and warrants should be obtained though that court. No one here has more than second hand knowledge of what this program does and how it works. These issues should be decided in a court where data on this program can presented and be protected (if it is decided that the program is legal).

I agree with Ann, the judge did not provide a serious answer.
8.23.2006 4:49pm
JosephSlater (mail):
Medis: While I agree with you on the merits of this discussion, in fairness to JPS3L, I believe he was responding to me labelling Cunningham a partisan.
8.23.2006 4:51pm
Medis:
OldManRick,

Personally, that is not the part of Althouse's piece which I find objectionable, although I think the part about the President ("After all, the president has a sworn duty to uphold the Constitution; he has his advisers, and they've concluded that the program is legal.") is a little lacking in what I will charitably call "nuance".

However, this is the part I think is dangerous: "If the words of the written opinion reveal that the judge did not follow the discipline of the judicial process, what sense does it make to take the judge's word about what the law means over the word of the president? If the judge's own writing does not support a belief that the rule of law has substance and depth, that law is something apart from political will, the significance of saying the president has gone beyond the limits of the law evaporates."

As we somewhat discussed above, I think this is an anti-constitutional view. If we don't like an opinion written by a federal judge, it is fine to criticize it. We can also hope for a better treatment on appeal. But just as we have to accept that bad decisions by a President don't mean that he loses his constitutional role as head of the Executive Branch, and bad decisions by Congress don't strip them of their constitutionally-enumerated legislative powers, so too do bad decisions by the courts not "evaporate" their constitutional authority.

And we have to accept all that to keep the system working--if constitutional authority "evaporated" every time an official misused his or her powers, then the system would be no system at all. In other words, the structures laid out in our Constitution aren't fool-proof, but that does not mean that every untoward thing that happens under constitutional authority is proof that the fundamental structural decisions embedded in the Constitution must be wrong.

In short, we take judges' word about the law because we have decided that having an independent judiciary is a good idea. And to give effect to that decision, we have to respect the constitutional authority behind both the decisions we like and the decisions we don't like (just as we do with the decisions of the President and Congress).
8.23.2006 5:11pm
Medis:
Joseph,

Good catch--I thought that post was a little odd (as directed to me).
8.23.2006 5:13pm
David M. Nieporent (www):
I've made this point before, but it's important so I'll say it again: the standard of appellate review, which David correctly states, does not requre Judge Taylor to use correct reasoning. The appellate standard ONLY requires that her result be correct on any legal ground. I am mystified that people continue to demand more of Judge Taylor than the legal system itself demands.
Hey, Mark.

I don't think that's quite right. While it's true that even a completely erroneous opinion won't be reversed if it happens to reach the right legal result, I hardly think that means that we can say that the legal system doesn't "demand" that lower courts use correct reasoning.

If the issue is, "Should it be reversed?" then of course you're right (assuming she in fact reached the right result). But if the issue is "Did she do a good job?" we can certainly note that her reasoning was shoddy (assuming one feels that it was), regardless of the correctness of the result.

as others have noted, her opinion was much more detailed than is common in ordinary civil cases.
Sure, but this was hardly an "ordinary civil case," either. It's not like it was a dispute over a restaurant customer spilling hot coffee on himself.
8.23.2006 5:54pm
Sebastian Dangerfield (mail):
James Lindgren:

Do you really think that Althouse was arguing that we should "just let the president have the final word on declaring what the law is"?

Yes, actually. Jumping off the springboard of her critique of one district judge opinion (a big, slow-moving target at that) Althouse wrote: "[W]e ought to wonder why a court gets to decide what the law is and not the president. After all, the president has a sworn duty to uphold the Constitution; he has his advisers, and they've concluded that the program is legal. Why should the judicial view prevail over the president's?" Before some yahoo wails again about this coming "out of context," I know full well that she then flags this question as "the most basic question in constitutional law" (an overstatment, to be sure, but it's certainly a biggie). The problem is that Althouse sees a crappy piece of trial-court opinion-writing and thinks this, sadly all-too-common, phenomenon is a major occasion for revisiting "the most basic question in constitutional law," i.e., concept of judicial review as an institution.
Let's also consider the penultimate sentence of th article: "If the words of the written opinion reveal that the judge did not follow the discipline of the judicial process, what sense does it make to take the judge's word about what the law means over the word of the president?" That's just so clearly the fallacy of the false dilemma. As thinking people we don't have to accept one or the other on faith; we can reason it out for ourselves (and, of course, we can if we need to wait until more sober heads on the intermediate appellate court and the supreme court weigh in, as those avenues of correction for crappy reasoning are built into the system as it currently stands). The main point is that Taylor's crappy opinion is just a crappy trial court opinion. It really isn't Exhibit A in the case against Marbury v. Madison. It serves as a nice excuse for a glib conservative commentator to take a dump on the judicial branch, but her effort to mix up the hatchet job with words of High Principle makes nothing but a rather sorry hash.
8.23.2006 5:55pm
Jay Lozier (mail):
After reading many of the comments about Prof. Althouses op-ed piece, I am struck by the fact that most are not addressing the fundamental issue: that the opinion is considered to be very sloppy with little or no logic or scholarship. A sloppy opinion means that any conclusion based on it is null and void because the conclusion is an unsupported assertion. This is irregardless of whether the final assertion is actually correct, you are still left with an assertion not a conclusion.


Her contention is that this case deserved a much more carefully crafted ruling showing the logic behind the final conclusion based on proper legal scholarship and sound reasoning. This has nothing to do with what the correct ruling should be, the final ruling may actually be correct in this case. Also, sloppy rulings on important issues hurt the premise that the courts are the final arbiters of what is constitutional or illegal, another point she was making.

As an engineer, I noticed may commenters discussing interesting but irrelevant issues not the fundamental issue that Prof. Althouse raised - judicial rulings must be logical, factual, and thorough at all levels.
8.23.2006 5:59pm
Alaskan Pete (mail):
OldManRick: You say there is reason to believe that exposing details about or shutting down this program would degrade our counter-terrorism efforts

Please explain to me how requiring a warrant after the fact equates to "shutting down this program". Does a warrant magically render all eavesdropping equipment useless as if hit by a large electromagnetic pulse?

This shallow reasoning is rampant and never addressed by proponents of the administration's stance. So please, explain it to me, I'm a little slow.
8.23.2006 6:12pm
theo (mail):
Hope it's not too late to correct JPS3L's badly out-of-context misquotation of Laurence Tribe, who in the quoted paragraph goes on to say,


[A]s legal academics many of us -- and I don't exclude myself from this observation -- sometimes miss the forest for the trees and act as though making an argument water-tight is more important than steering the legal boat in the right direction, much less reaching the correct shore.


It's very easy to nitpick, especially in a politically charged case like this. I'm sure Orin Kerr has some excellent arguments for wiretapping in violation of FISA; unfortunately for Kerr, the goverment seems to have failed to submit them to the judge. Diggs Taylor seems to have fulfilled her responsibilities in this ruling, one of a hundred she will write this year.

Althouse, as the foremost grammarian in legal blogging, continually obsesses about style over substance. And, in her own incomparably indolent way, she rushed out an op-ed without familiarizing herself with the basic facts of the case.

I have yet to meet any other professor who is so proud to parade her uncuriosity and indolence.
8.23.2006 7:20pm
Mark R (mail):
I know that the legal arguments and castigating DOJ for failing to respond on merits are more fun. But I think a more fundamental DOJ strategy in this case was to undo the damage done by NYT disclosure of the program.

Recall that the standing argument was based on the fact that following the NYT disclosure of the TSP, the terrorists and their mouthpieces have stopped talking to the journalists and others on the phone. Now that the Judge has ruled TSP unconstitutional, the terrorists, of course, can feel safe in picking up the phone again and talking to the journalists. A brilliant stroke by the government, isn't it? I think we have underutilized the Judicial branch in War on Terror, they can be so effective sometimes.
8.23.2006 8:00pm
Mark Field (mail):

But if the issue is "Did she do a good job?" we can certainly note that her reasoning was shoddy (assuming one feels that it was), regardless of the correctness of the result.


I agree with this. The problem is that the issue "did the judge do a good job?" is being used by too many as a substitute for "did the judge issue the right ruling?". Just see Jay Lozier's post at 5:12 (not to pick on Jay; he's not the only one, he's just the most convenient example). Althouse herself makes the same mistake.

As for whether Judge Taylor "did a good job", that's fairly subjective. District Court judges mostly face a very heavy caseload which emphasizes criminal cases. As a practical matter, they lack the time or the resources to produce opinions, even occasionally, which would satisfy a law professor. That's why we have appellate courts -- to produce more scholarly work. And the SCOTUS above all, where, as I said above, such expectations are entirely fair.

The truth is, lawyers behave just like the judge. Who has ever had a case where the briefs submitted to the trial court were better than the briefs on appeal? We are always editing and refining our arguments, even when we're driving home from the Supreme Court thinking "damn it! why didn't I say X?". Really, the demands being made on Judge Taylor are way overblown.
8.23.2006 8:26pm
OldManRick (mail):
Quick replies:

Medis:

"If the words of the written opinion reveal that the judge did not follow the discipline of the judicial process, what sense does it make to take the judge's word about what the law means over the word of the president? If the judge's own writing does not support a belief that the rule of law has substance and depth, that law is something apart from political will, the significance of saying the president has gone beyond the limits of the law evaporates."

Again, this is in the context of "why should we believe the judge, if...". The argument supplied by the judge reminded me of an boss I once worked for who used the phrase "because I'm the mommy" to answer "why are we doing it this way" questions. Needless to say, this did not go over well with engineers. As an engineer, I agree with Jay Lozier -

the fundamental issue that Prof. Althouse raised - judicial rulings must be logical, factual, and thorough at all levels.


Without this, what we have is a choice between two arbitrary opinions. As Ann points out, if the judge appears to be acting arbitrarily, why should her ruling have any more force than the president's. In this case, the president seems to have acted in better faith than the judge - he has his advisers, and they've concluded that the program is legal. while the judge did not follow the discipline of the judicial process, . Thus Ann's conclusion "what sense does it make to take the judge's word about what the law means over the word of the president?" makes sense.


Alaskan Pete:

Please explain to me how requiring a warrant after the fact equates to "shutting down this program". Does a warrant magically render all eavesdropping equipment useless as if hit by a large electromagnetic pulse?


I know a lot of pixels and electrons have passed since the original ruling but, IIRC, her decision was not that they needed to get warrants to continue but the entire program was unconstitutional by the 1st and 4th and needed to be stopped immediately. You may correct me if I am wrong.

I see this one going all the way to the top.
8.23.2006 8:47pm
johnt (mail):
Justin, your request for deletion of my comments being ignored has not ruined your chances of a good night's sleep, I hope. But what do you mean by the "racism in JohnT's posts", plural form. Would you, can you ,enumerate? Also, just where do I say that Diggs Taylor should be ignored because of her race, would you please quote the sentence. My dear lad, you seem to have a cognition problem!
Brace up fellow, considering what comes from the left a little turnabout is fair play and selective sensitivity not to be taken seriously by this blogger.
8.23.2006 11:58pm
Ship Erect (mail) (www):
By calling her "Sistah Diggs-Taylor," johnt, you weren't bringing her race into this discussion in order to deride her? Care to explain?
8.24.2006 12:16am
Justin (mail):
By calling a federal judge "Sistah Diggs-Taylor" instead of "Judge Diggs-Taylor" clearly implies that black women are not worth the respect afforded to other members of society with equal positions. It's racist, and this one isn't much of a close call.
8.24.2006 12:43am
Christopher Cooke (mail):
I am disappointed in Althouse's article. She trots out the "unitary executive" theory, which is essentially the "President is our King" theory of constitutional law, without acknowledging that no one, apart from one or two Supreme Court justices (e.g., the esteemed Clarence Thomas) has ever seriously argued that this theory is correct or sound (I would note: Nixon's personal lawyer suggested this argument in the Nixon tapes case, during oral argument, but even the Imperial President did not buy it). Althouse criticizes the Judge for her "there are no hereditary Kings" line, arguing that the President Bush claimed to be acting under the Constitutional, not in violation of it; yet, I think the Judge by this line meant only that Bush had violated FISA and the Constitutional, so his arguments about how he was authorized to implement the TSP were wrong, and essentially was repeating the often heard platitude that "no one is above the law." Finally, Althouse criticizes the judge for ignoring standing requirements (which the Judge did not, but maybe her reasoning was wrong), but Althouse herself does not articulate why the plaintiffs should have lost on these points. A bit of the pot calling the kettle black, professor?

As for Cunningham's article in the National Review, his right-wing bias is obvious in the second sentence---

"The lone judge in American history to order a president to halt in wartime a foreign-intelligence-collection program that has undoubtedly saved lives probably sympathizes with the journalists, and others, who are suing to stop the Terrorist Surveillance Program (TSP) in which NSA intercepts foreign-U.S. terrorist communications."

First, if Mr. Cunningham were a careful lawyer, he would notice that Congress has not formally declared war, so the "wartime" would not be in his sentence. Second, if Mr. Cunningham were concerned with making only factual assertions, rather than unsupported guesses, he would drop the "undoubtedly saved lives" line from his article. (I doubt he is privy to the classified British intelligence and police information that uncovered this plot). Third, if Mr. Cunningham were a fair person, he might actually read the FISA Surveillance Court's opinion, and note in that opinion that the AG in that case argued that FISA was constitutional, which was the main issued the FISA court ruled on, and discover (as others have done) that the court's discussion of the President's "inherent" authority under the Constitution to engage in such surveillance was dicta. I conclude that Mr. Cunningham is none of these-- neither careful with the law, careful with the facts, nor concerned with trying to present a fair rebuttal to the Judge's admittedly poorly written decision. Probably, he is just a partisan hack, like his co-amici, the Washington Legal Foundation (see this entry on the Washington Legal Foundation).
8.24.2006 12:46am