As I predicted last month, the NSA’s controversial surveillance program has been ruled unconstitutional by Judge Anna Diggs Taylor, an ideologue Carter-appointed judge who has a documented history of bending the rules to obtain the leftist result.
As I reminded readers last month, Taylor once engaged in a highly unusual attempt to take the Michigan affirmative action case from a conservative judge:
Earlier, Chief Judge Anna Diggs Taylor of the federal District Court in Detroit tried to take the suit against the law school away from Judge Bernard Freedman, who had been assigned it through a blind draw–and who was suspected of being skeptical about affirmative action–and consolidate it with a similar suit against the university’s undergraduate admissions practice, which Judge Patrick Duggan was hearing. The chief judge dropped that effort . . . after the judge hearing the law school complaint went public with a blistering opinion objecting to what he termed “the highly irregular” effort of the chief judge. Judge Duggan ruled in favor of the undergraduate racial preferences, while Judge Freedman ruled against the law school preferences.
Based on this history, I predicted in my earlier post that Judge Taylor would rule the NSA program unconstitutional. If Judge Taylor was willing to bend the rules to promote affirmative action, why not twist the law in order to rule unconstitutional a significant Bush anti-terror program?
I have not yet read the decision, but a limited sampling of reaction from intelligent lawyers across the blogosphere suggests that she did indeed twist the law, as I predicted she would.
Eugene Volokh says that the opinion “seems not just ill-reasoned, but rhetorically ill-conceived.” He calls it a “seemingly angry, almost partisan-sounding opinion” which is “rich in generalities, platitudes . . . and “obviously”‘s, and poor in detailed discussion of some of the government’s strongest arguments.”
Orin Kerr describes the opinion using phrases like: “well, um, it’s kind of hard to know what to make of it” and “I confess that this has me scratching my head.”
Judge Taylor’s opinion reads like a parody of bad judicial reasoning. The self-appointed legal solons of the Left will have to work long and hard to compose the straight face to dress up this opinion as anything but a travesty of the judicial process.
No, it’s not going over well at all — among people with intellectual integrity, that is. (Those lacking integrity are, naturally, thrilled.)
Again: this is no surprise. An activist leftist judge with little respect for established legal procedures could hardly be expected to do anything else.
UPDATE: It should be noted that some of the above commenters have expressed strong doubts about the program’s legality (like Volokh) or
conclusive tentative opinions that it is illegal (like Kerr) — yet they are still utterly critical of the court’s reasoning, or lack thereof. The fact that intellectually honest people agree with the result but are so critical of the reasoning is damning indeed. Even dishonest folks like Greenwald must concede that the opinion is deficient in analysis and argument — but folks like that don’t care, as long as they like the result.
UPDATE x2: I have now read the opinion. It is one of the most embarrassing pieces of garbage I have ever read. The idea that a sitting federal judge wrote such a shoddy piece of junk in a high-profile case should make even the most rabid Bush-hater squirm.
The word “undisputedly” is repeated again and again as a substitute for any effort at analysis or argument.
The judge leaps to decide the constitutional issue ahead of the statutory one, in contravention of well-accepted principles mandating the opposite approach.
She fails to perform balancing tests, or to address solid arguments for a warrant exception — like the border search exception to the warrant requirement.
And tomorrow, the media will shun expert analysis that would reveal these glaring deficiencies in her “reasoning.” Count on it.
UPDATE x3: Xrlq has convinced me that Kerr’s opinion on the illegality of the program is tentative, not conclusive, and I have updated the post to reflect this.