Patterico's Pontifications


The New Lefty Defense of the Wretched Taylor NSA Opinion

Filed under: Civil Liberties,Constitutional Law,Court Decisions — Patterico @ 9:21 pm

Some justify the lack of analysis in Judge Taylor’s NSA opinion by arguing that it’s the Government’s fault for doing a poor brief. Glenn Greenwald advances this argument here, and some of his less brainy stooges have followed suit.

The idea that this is all the Government’s fault is nonsense. The Government cannot force a judge to articulate rules incorrectly, as Judge Taylor did when she stated that the Fourth Amendment “requires prior warrants for any reasonable search, based upon prior-existing probable cause” — a flat misstatement of the law.

Nor can the Government force the judge to articulate rules and then simply fail to apply them, as she did in her First Amendment discussion. There, she cited the rule requiring speech restrictions to serve a compelling governmental interest in the least restrictive manner possible. Having stated the rule, she failed to, you know, apply it, choosing instead to resort to our old friend “undisputedly”:

The President of the United States, a creature of the same Constitution which gave us these Amendments, has undisputedly violated the Fourth in failing to procure judicial orders as required by FISA, and accordingly has violated the First Amendment Rights of these Plaintiffs as well.

That’s not an analysis, folks.

Greenwald’s other point, regarding the Government’s alleged failure to make certain arguments, is confused by the procedural context. Orin Kerr has posted several of the relevant documents. As the comments to his post show, the procedural posture of the case is all mixed up. A decent opinion would have made it clear. But one thing *is* clear: the Government did not intend to waive its substantive arguments, and the judge never said it had. That undercuts Greenwald’s argument severely.

12 Responses to “The New Lefty Defense of the Wretched Taylor NSA Opinion”

  1. LOL.

    Certainly, some may consider backing off from their claim that Judge Diggs Taylor imprudently used the word “undisputably”. That much is apparent from the docket.

    [Undisputably, she is a terrible judge. Do you dispute it? In the two seconds I gave you while writing this comment, I see you didn’t. Well, there you have it then! It’s undisputed! — P]

    [Plus: I show in the post how she uses the word as a substitute for application of a rule she has articulated. That’s indefensible. — P]

    BTD_Venkat (baf187)

  2. I question the timing of this.
    I said GOOD DAY sir.

    the REAL Thomas Ellersbuger (aac9ba)

  3. I have not any mention of other poorly reasoned judgements by Judge Diggs Taylor and it does seem she has some intelligence.

    So why did she do it and why now? Only things I can think of is :
    she is retiring real soon
    combo of above

    seePea (d42e04)

  4. I guess someone has to respond to the sock puppeteer. I admire you for keeping at it. I looked at his headline (“Ann Althouse – NYT legal expert on a case she knows nothing about”), rolled my eyes, and spared myself, since it was obvious he was gonna be in full douchebag mode. To borrow from Instapundit, you read him so we don’t have to. :)

    Most people can see the judge’s opinion for what it is (I even heard one of the plaintiffs of the case, Christopher Hitchens, making fun of it on Hugh Hewitt’s radio show), and it doesn’t really matter since it’s just a district court. (I’m agnostic on how the appellate courts should rule, since I haven’t studied the matter enough….)

    LoafingOaf (9f37aa)

  5. Molly Ivins had an unintentionally hilarious column on this case. She said that it doesn’t matter that the opinion was badly written because Taylor said the program is unconstitutional, as if using that word makes up for the lack of support for the conclusion. Maybe Ivins thinks she has a chance as a judge now if a Democrat gets into office, since she seems to have the necessary lack of logic qualification.

    sharon (63d8f8)

  6. How about also giving credit to the left where it’s due? For example, the Legal Fiction site has been criticizing the decision (and Greenwald) too:

    Psyberian (33755f)

  7. Our friends on the left just don’t know what to do: they love the result, especially her honor’s use of teh word unconstitutional, but they also know that the decision itself was so poorly crafted as to become a liability on appeal.

    A question for our host: when the government appeals Judge Taylor’s decision, is the defense of the currently winning position hamstrung by a bad decision, or are they free to use other arguments that might be on firmer legal ground?

    Dana (71415b)

  8. Venkat:

    Certainly, some may consider backing off from their claim that Judge Diggs Taylor imprudently used the word “undisputably”. That much is apparent from the docket.

    Certainly, two can play that game. Undisputably, you are the legal equivalent of a mental retard, who wouldn’t know a serious argument if it bit him on the butt. That much is apparent from your comment.

    Hey, this is fun! Can I be a judge, too?

    Xrlq (f52b4f)

  9. Time for a congrssional investigation of the ACLU

    krazy kagu (9e66df)

  10. That’s Mr. Greenwald. This case was decided by summary judgment. It will should be reviewed de novo. The court of appeals will consider the entire record as though it were ruling on the respective motions. No deference will be paid to Judge Taylor’s “conclusions of fact”. There never is by the way. Deference is paid to FINDINGS of fact when facts are in dispute. So yes, Mr. Disingenuous is Pythic in his prediction. The court of appeals will care little about Judge Taylor’s reasoning. It will make its own judgment.

    nk (2ab789)

  11. As an attorney, I’ve read the opinion and DoJ’s brief … and Greenwald’s post on it, and (most regrettably) the comments to same. As to Greenwald’s analysis, as one sane commenter said, he’s trying too hard to put lipstick on a pig. A comment can’t catch it all, but my thoughts are that the DoJ moved for dismissal or summary judgment on the narrow procedural issues of standing and state secret privilege. ACLU filed a counter-MSJ to go to the substantive issues of constitutionality and statutory compliance on “undisputed” facts that one-end eavesdropping was conducted without warrants, chilling the plaintiffs’ “rights” (but without a showing of any injury-in-fact to anyone even in the samesimilar class). DoJ wanted this counter-MSJ stayed and only its own limited motion considered. Judge Taylor all but bounded head-long into declaring the facts decided and the TSP unconstitutional and a statutory violation in causing the plaintiffs'”chill.” My prediction: this thing won’t even survive a standing challenge in the 6th Circuit and before the S.Ct. … despite Greenwald’s assessment and the BDS infesting his blog base.

    Monsoon (001e7b)

  12. Liberals will alsways say anything to excuse serious crime

    krazy kagu (52a738)

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