Round-Up: (Mostly) NSA Wiretap Ruling
First off, if you have not yet seen the opinion by Judge Taylor regarding the NSA terrorist suveiallance program, see this earlier post, by Lyle, which summarizes the ruling (the opinion can be downloaded in full here).
Jack Balkin had these thoughts at Balkinization, which welcomed the result of the decision but were quite critical of much of its reasoning; Marty Lederman mostly agrees with that sentiment in this post, also at Balkinization.
Glenn Greenwald, author of the new book How Would a Patriot Act?, has this breakdown of the decision on his own blog.
Eugene Volokh, of Volokh Conspiracy fame, has an interesting clarification of the claim that the TSP violates the first amendment here.
Meanwhile, in today’s editorial pages of the major papers, the reaction (as expected) is all over the map. On the left, the New York Times hails the decision as a “careful, thoroughly grounded opinion, [in which] one judge in Michigan has done what 535 members of Congress have so abysmally failed to do.” The Washington Post does not necessarily disagree with the result but was unsatisfied by the reasoning, calling it “neither careful nor scholarly”; that editorial board looks forward to further rulings on this matter, happily commenting that Judge Taylor’s decision “won’t be the last word.” The Wall Street Journal, however, is not so restrained in its distate for the ruling, as its editorial refers to the Judge as “President Taylor,” while wondering if she may have been motivated by a tempation to be hailed as “Civil Libertarian of the Year.”
Finally, one link that may be of interest that does not have to do with yesterday’s ruling: in a post here at PropertyProf Blog, Ben Barros reveals a letter from Justice Powell to Justice O’Connor in the midst of deciding Midkiff.
The contrast in editorials between two left-of-center newspapers is the most interesting thing here, IMHO. In some quarters, a Politically Correct result is sufficient to get any judge declared a scholar and any opinion an exemplar of legal reasoning. Others know a hatchet job when they see one and cring at the sight, even if they agree with the bottom line.
Comment by Kent Scheidegger — August 18, 2006 @ 8:31 pm
Obvious this will be promptly overturned By appeals Court for LACK of STANDING. This judge is clueless. I hope the supreme court uses the lack of standing to reverse many cases this year.
Comment by dante805 — August 18, 2006 @ 11:15 pm
I don’t think this is “obvious” at all. The plaintiffs explained their injury in terms deliberately calculated to fit within the Supreme Court’s prior jurisprudence on standing. There are some open issues about “state secrets” and such, but it is hardly “obvious.”
Whether the opinion is good or not, quite frankly, doesn’t matter. All that matter is how quickly this gets to the Supreme Court. Indeed, if the judge had issued a one (or two) line order, without an explanation, it would have put us in the same place
Comment by S. COTUS — August 27, 2006 @ 11:05 pm
S.COTUS–I assume that what you mean by “in the same place” is strictly with respect to the legal outcome of this case. But I would argue that this judge’s opinion, which contains bald legal errors, has created problems other than those that would have emanated from a one or two line order.
Whatever one thinks of the legal merits of the government’s wiretapping (and it’s hard to assess the legal merits when we don’t know everything about the program), it is quite clear that it is being done to protect America from the gravest of threats. But the judge’s polemic gives no hint of any modesty, shows incomeptence and, on its face, does not appear to be a serious attempt to resolve the issues in a neutral manner. The reference to “kings” was clearly over the top.
This judge is an embarassment to the federal judiciary. And she has diminished the judiciary by her actions. After showing such disrespect for the legitimate concerns of society (i.e., self-preservation) by her silly polemic, what moral right does she have to expect that anyone take her decisions seriously? Yes, she still has the coercive power of a federal judge, but that’s not really what judging is about, is it? After all, ideally speaking anyway, judges have coercive power to deal with the fact that recalcitrant folks may not listen to reason, not to impose irrationality upon society.
Also, how would you like to be a litigant in front of this judge after her opinion? She’s obviously unserious and not so good at the whole legal reasoning thing. Maybe I’d rather have her than Manuel Real, who can be swayed by a pretty face . . . . but that’s a subject for another day.
Comment by federalist — August 28, 2006 @ 10:23 am
Quite frankly, I think there are some doubt that it is being done to “protect America from the greatest of threats.” If they were so great, more specifics could be given. To the FISC. To the judge (under seal), or even Congress. It shouldn’t be too hard to convince a court, Congress, or the American people that the president can, should, and must violate a statute to protect their well-being. But they did not. Strangely, the FISA has several provisions that enable the executive to work quickly, securing warrants on an expedited basis or retroactively. Moreover, people seem to take a smug attitude now, that in the name of “national security” anything is possible. (Using the word “clear” doesn’t make your argument better, so I don’t know what conclusions I can draw.)
If you think that it is just too dangerous to use the Democratic process, because the judge, Congressmen, and all courts might be terrorists, then your beef is with Americans as a whole. Not the judge. Not the ACLU.
The judge isn’t an embarrassment to the Federal Judiciary. The opinion was pretty good. (You don’t identify any errors that are obvious, or against the weight of authority, and you don’t seem to know the arguments advanced by either side in any detail, despite the fact that they were posted the web.) There are some areas that reasonable minds can differ regarding, but this is true with most litigation. Whether or not the plaintiffs alleged standing is a difficult issue, at best. If every single opinion (from the bench or in writing) from every District Court was subject to your criticism, I don’t think that you would ever stop complaining. Most litigants are lucky to get 40+ pages on a motion for summary judgment. People are routinely sentenced to life in prison with less verbiage than that, and people have their death sentences left undisturbed on habeas with even less. Granted, these people don’t make a lot of money, and their lives are not worth that much, but you would think that they could get at least 20 or so pages before being locked away for good in a hole. Perhaps if you want to look at “embarrassments” you can start with sentencing and habeas.
So, you asked if I would like to be a litigant in front of her: she wouldn’t be my first choice, but if every judge put as much work into that decision as she put into the wiretapping decision, I would be quite happy.
Further, since we are in exactly the same place legally as we were before the lawsuit, only the venue has changed (to the 6th circuit), I fail to see why anyone is hurt. In such an issue of “pure law” the trial court is nothing more than a pit stop. You didn’t explain why this is not the case.
As to taking her decision “seriously” you need only take it as “seriously” as the law allows. Since her decision is on a purely legal issue, then you only need to take the judgment seriously. Whatever that means. Since she has not held anyone in contempt, nor has she ordered anyone to reason, I don’t see what you were expecting her to do (other than rule the other way, and side against someone you disagree with.)
I understand the need to malign her, but you probably want to concentrate on the actual issues raised, because they will be raised before the 6th Circuit, in almost identical form, and before the Supreme Court. It will also help your argument to provide specifics, including citations, and direct quotes from any binding precedent or statutes. (You don’t need to do this if your argument is purely political.)
Comment by S. COTUS — August 28, 2006 @ 2:25 pm
S.COTUS
I think you missed my points. As you’ll note, nowhere in my post do I actually state what I think of the program, although it’s a pretty good guess that I don’t agree with the judge’s polemic, er judicial opinion. As for errors, how about this one:
“It [i.e., the 4th Amendment] also requires prior warrants for any reasonable search, based upon prior-existing probable cause, as well as particularity as to persons, places, and things, and the interposition of a neutral magistrate between Executive branch enforcement officers and citizens.”
This is wrong. Care to defend it?
Or what about the First Amendment “analysis”? She basically cites some authority about associational rights and then says that the actions violated the First Amendment rights of the plaintiffs.
Care to defend how she arrived at her conclusions re: 1st Amendment?
I also mentioned the fact that the king reference was over the top. Though no one has thrice offered Dubya a kingly crown, I doubt he would accept one. So I think that I’ve demonstrated that the opinion has issues. Plus, not to be nitpicky, but the grammar and syntax in the opinion are terrible, e.g., “The President of the United States is himself created by that same Constitution.” Or how about this gem: “The President of the United States, a creature of the same Constitution which gave us the Amendments, has undisputably violated the Fourth in failing to procure judicial orders as required by FISA, and accordingly has violated the First Amendment Rights of the Plaintiffs as well.” Or this one: “The concept that each form of governmental power should be separated was a well-developed one.”
My point is that the opinion is fundamentally unserious and very flawed. Given that at least two branches of our government have determined that there is a war on and that the President has determined that this program is necessary for the protection of our nation, one would think that an unelected judge would be very careful not to: (a) make ad hominem attacks (i.e., the king references) and (b) deal with the very serious issues raised by the case in a thoughtful manner. This judge did neither, and it is a sign of her fundamental disrepect of the political branches. When judges act in such a manner, they debase the currency of their decisions and undermine respect for the rule of law, which is what is vital to their continued power. And I believe my question about seriousness asked about her moral right, not the raw coercive power that a court order contains.
Your reference to the Democratic process is opaque, as the President is selected by a democratic process (with some anti-majoritarian aspects to be sure, but Bush did win a majority of the votes cast in 2004). A President is elected, in part, to defend the nation against threats.
In any event, I did try to stay out of the merits here, and I was responding to your specific point about the content of the opinion not being anything to get worked up about.
I cannot help but comment on your snide derogation of the motives of the president. In case you hadn’t noticed, the people against whom we fight would kill every one of us if given the chance. We have one guy who can direct our national effort against these people, and that is the president. He may not be doing it in the manner in which you prefer, but I think it a pretty nasty charge to state that his motives are other than those stated.
Comment by federalist — August 28, 2006 @ 9:07 pm
Federalist,
First of all, in the text of the Fourth amendment, there are different opinions of the “reasonable search” requirement. Some say that no unreasonable searches are ever allowed, even with a warrant. When a warrant is obtained, the search must be reasonable. A search without a warrant, under this theory, is either “not a search” or required by some judicially-created exception such as exigent circumstances. Others say that a warrant allows people to be searched unreasonably.
Her First Amendment analysis was reasonable. At some level, journalists and others need to communicate, often in secret with sources. If the government makes a habit of monitoring them, without explaining to a judge why it is necessary, arguably there is some injury under the 1st amendment. Whether this is “the law” or not remains to be seen.
Your arguments about her “grammar and syntax” can’t be argued with, because they are just insults to the judge herself. Granted, this is the way law students and some associates try and insult one another to look better, and it is acceptable behavior at some (but not all) firms, but it doesn’t really advance the conversation. However, as a historical matter, the constitution and the BOR was created in the shadow of British “oppression” which was done in the name of a King who had, by coincidence, the same first name as our current president! But, not to worry, the past three presidents also had the same first name as kings of England.
Whether “two branches of government” have “determined that there is a war” is somewhat debatable. One branch says there is. One branch isn’t so sure. The third branch is somewhere in the middle. No declaration of war was made. The constitution could have been amended, but it was not. There has been plenty of time. Congress has been very clear about what is more important: changing the constitution to stop flag burning and gay marriage. Not abrogating the 4th amendment. Not declaring war. Not even amending the FISA.
The president can determine all sorts of stuff is “necessary.” That doesn’t make it legal. Since he didn’t explain why the procedures given in the FISA were inadequate, with specificity, I can’t take his views too seriously. But rest assured, anyone that doesn’t state their position with specificity isn’t taken seriously by me.
Whether this displays “fundamental disrespect” for “the political branches” is doubtful, since the opinion relied on statutes from Congress, which, at a minimum, created a statute with specific requirements. So, if any “disrespect” is show, it was not to Congress (which could have filed its own brief, but did not), but to the president. Whether one needs to “respect” another branch is doubtful. The constitution doesn’t require deference to the executive on its own interpretation. I wish it did, because then there would be little need for criminal trials.
I can derogate the motives of the president as much I want. By not providing specifics, I must adversely conclude that he has the worst of motives. I don’t really know who he is fighting against, and who they would kill, and why they are any more dangerous than common criminals. Also, certain people that work for the president (or claim to) have told me that they are going to “declare war” on the ACLU (exact word from a political appointee), which strikes me as a little silly. So dangerous that it is physically impossible to comply with the law. This is why specific arguments need to be made.
Finally, if this were really necessary, the president has other devices available to him, such as 1) the power to pardon; 2) the power to actually attempt to abide by the law; and 3) the power to consult with Congress.
Now, maybe, in the long run, you are right. Maybe the president can pick and choose what parts of the constitution and US Code he wants to abide by. But to vaguely state again and again the opinion is flawed, reminds me of the 1Ls at the bottom of the class who think that the professor was wrong in grading them the way they did! Next time you might do better with convincing a court that your vaguer arguments are the better ones. But, at least because of this decision there will be a next time.
Comment by S. COTUS — August 29, 2006 @ 6:49 am
S.COTUS–Bottom line, the judge swung and missed on the Fourth Amendment. The quoted language is simply wrong. Since there are exceptions to the warrant requirement, the Fourth Amendment simply does not require “prior warrants” for any reasonable search. This is not an accurate statement of the law. And I don’t think this is a vague statement on my part.
As for the First Amendment, I understand that you agree with the results, but all this judge did was point to some “chilling” speech cases and announce a result. If you think that reasonable, fine, I cannot argue with that, but many commentators, on all sides of the political spectrum, have agreed that her analysis leaves a lot to be desired.
As for my criticism of the judge’s syntax and grammar, I don’t think it insulting (although the “gem” comment is a bit sarcastic). I find the judge’s inability to get the law right, her polemicism and the sloppy writing to be offensive to the body politic. This decision is a big deal, and if she cannot get the basics right, i.e., accurately stating the law governing the warrant requirement and toning down the rhetoric (to say nothing of the haphazard drafting, of which I have provided a few examples), then how can we trust that she got the hard stuff right?
I’m glad I remind you of the 1Ls who were at the bottom of the class and who whined about grades. Hey, when your argument is weak and misses the point (note that I have not gotten into the debate over whether the result is right), you might as well resort to ad hominem.
Comment by federalist — August 29, 2006 @ 12:38 pm
Well, you keep saying this is the law, but I think that there is a dispute between people on the issue, and you don’t cite any decisive authority that says that you are correct. Perhaps if you were to cite a Supreme Court case and language that unequivocally takes a position on this language you might have a serious legal argument. But you did not. You just restated your position, which does not make it any more or less correct.
I don’t know if I agree with the results or not. This is a very, very complicated issue, and to hastily come to a conclusion is bad. Some people have told me, with a straight face, that when people form opinions on constitutional issues without seriously researching them, it does more damage to the country than a million Bin Ladens. Therefore, in the interest of helping America, I will not come to a conclusion, except to note that by rendering a decision quickly, the appellate courts might decide the issue, which, I think is the only correct result. This is my only argument, apart from not thinking that the judge was wholly incorrect.
My point about the 1Ls, is that you are making excuses for being unable to convince one judge that your position was so obviously correct. This does not impress clients. It does not impress judges. You just need to be a better advocate.
So, to recap: 1) I don’t have a position on the ultimate issue, a constitutional matter. 2) The government’s motives are suspect because they don’t seem to have litigated proceeded legislatively in good faith (but this is not with prejudice to the first issue, on which I have not taken a position); 3) it is unAmerican to come to a conclusion on the correct interpretation of the constitution without doing a lot of research; 4) the judge’s decision, while not necessarily correct, was not necessarily incorrect, either (and, by not citing any authority or language from the Supreme Court or Sixth Circuit, lawyer might do, you seem to have conceded that issue); and 5) by ruling quickly, the judge did everyone a favor, and got the issue up to a higher court. I have no other points, and if you claim that I am taking any other position, then you are just making stuff up for political gain.
Comment by S. COTUS — August 29, 2006 @ 4:20 pm
S.COTUS, I can explain it to you–I cannot understand it for you.
The judge said that the Fourth Amendment requires prior warrants for any reasonable search. That is flat-out wrong. There are a whole host of reasonable searches that don’t require a warrant. Now, saying the judge got the law on the Fourth Amendment wrong is not saying that she got the ultimate result wrong. What’s your issue? Do I really need to cite to authority to prove that warrants are not a pre-requisite to all searches?
My larger point is, given the obvious shortcomings of this opinion (i.e., botching the statement on the Fourth Amendment, the lack of reasoning with respect to the First Amendment discussion and the sloppy drafting, to say nothing of the rhetorical excess) really give the judiciary a black eye. Certainly, the citizenry is entitled to expect more than the amateur hour that was going on in the judge’s chambers. When federal judges, through their work, call into question their impartiality (and I think it plain that this judge does so with the “king” remarks) and their competence (botching the basics on the 4th Amendment, which everyone (except apparently S.COTUS) agrees is simply wrong), public confidence in their decisions suffers, and given the inherent weakness of the judiciary (controlling neither the purse nor the sword), a lack of public confidence can ultimately lead to a situation where the judiciary loses its monopoly on saying what the law is.
Comment by federalist — August 29, 2006 @ 6:15 pm
Unless you can provide a specific case from the Supreme Court that says that that is the only way to interpret the constitution, then there is no weight to your argument that her decision was “plain wrong.” If you had provided specifics, rather than just reciting your conclusion you could have convinced me. But you did not.
Since you can’t provide authority for something that you claim is “obvious” it probably isn’t. You could have provided one Supreme Court case that conceives of the 4th amendment the way you do. But you did not. (I will concede that your line of thinking is evidence in some opinions. But not in others.)
The citizenry isn’t entitled to that much. They don’t read opinions. They don’t care. When they are convicted of a crime they go to jail for life with a heck of a lot less than writing or research then she did.
If anyone would like to help Federalist out, with specifics, I would be interested in hearing it.
Comment by S. COTUS — August 29, 2006 @ 6:33 pm
S.COTUS
Are you just being obtuse? I did not write that the decision was wrong–I wrote that the judge’s description of Fourth Amendment law was wrong. Here, once again, is the quote:
“It [i.e., the 4th Amendment] also requires prior warrants for any reasonable search, based upon prior-existing probable cause, as well as particularity as to persons, places, and things, and the interposition of a neutral magistrate between Executive branch enforcement officers and citizens.”
That quote is NOT an accurate statement of the law. Why, because warrants are not always required for searches. See, e.g., United States v. Flores-Montano, 541 U.S. __ (2004) (border search sans warrant).
I’ll let your statement about the citizenry not being entitled to much stand on its own.
Comment by federalist — August 29, 2006 @ 7:18 pm
Okay, you are not even listening to my point, anyway. My point was that there is a conceptual split between whether certain things are completely excluded from the 4th amendment’s ambit (as may be searches at the border) and therefore those exclusions require no warrant and can be unreasonable, or whether certain “reasonable” searches require no warrant, but are still within the 4th amendment, and no search can be unreasonable
Flores-Montano does not clarify the issue, because it concentrates on a possible deprivation of property as per the 5th amendment. In fact, the court is very careful to speak not in terms of a 4th amendment right to privacy but in a general right to “privacy” (rejecting a broader “fourth amendment right to privacy and property.”) Instead, it alludes to the “exclusion” theory (that is, the 4th doesn’t cover it at all) by saying “Time and again, we have stated that “searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border.” United States v. Ramsey, 431 U. S. 606, 616 (1977).” Whatever the case, the justices know this and are careful not to take a position on which view of the 4th they adopt, because they know that it is a bigger issue. This is why her description of the law might not mesh your conception.
If people wanted a more cerebral judiciary, they would demand it. But they don’t. Confirmation hearings don’t really concentrate on scholarship, but, at best, on an understanding of “the law” and where someone stood in a partisan framework. Scholarship, at best, is used to see where someone fits into that framework.
Personally, I don’t see how one has a privacy interest in a gas tank, but I will leave that for another day.
I appreciate your support of America, but some of us support our country, too.
Comment by S. COTUS — August 30, 2006 @ 6:12 am
S.COTUS:
I fully understand the difference between something not being a “search” for purposes of the Fourth Amendment and a search without a warrant. But the judge’s statement itself says no searches sans warrants. That is WRONG. Got it? The issue of whether there are some things that are outside the ambit of the Fourth Amendment is irrelevant, since there are things that are Fourth Amendment “searches” but which do not require warrants, and the judge said that there are not. It’s really not a matter of not listening to you–it’s more of politesse in not pointing out how you are missing the point. Given your comments about 1Ls etc., I think I’ve been somewhat restrained.
I confess I was a little obtuse in picking a border search case, which, given how Katz works, seems particularly relevant here.
Comment by federalist — August 30, 2006 @ 1:23 pm
Just repeating that your view is the only view, and the judge’s view is incorrect doesn’t change the situation. Nor does using LARGE LETTERS. LIKE THIS.
First of all, I went through the opinion carefully, and I don’t see the language that you are referring to. In fact, I don’t see any declarations of the meaning of the 4th amendment (with the exception of restatements of the plaintiffs arguments) without a quoted references to another case. (Indeed, this is a little disappointing to me.) So, if you are claiming that the judge wrote “. But the judge’s statement itself says no searches sans warrants” without providing a reference to authority (usually the 6th Circuit, the DC Circuit, or the Supreme Court), you would need to provide specifics, because, I don’t see them. Perhaps it isn’t there. (I know this has been a line trolled by the administration to the lay people, but they are very clear that the intended audience for that is not the courts or lawyers, which is fair enough.)
Going though the opinion, the only non-precedential interpretations of the fourth by her are as follows:
***The Fourth Amendment, accordingly, was adopted to assure that Executive abuses of the
power to search would not continue in our new nation. p.30
***Accordingly, the Fourth Amendment, about which much has been written, in its few words requires reasonableness in all searches. pp. 30-31
***It also requires prior warrants for any reasonable search, based upon prior-existing probable cause, as well as particularity as to persons, places, and things, and the interposition of a neutral magistrate between Executive branch enforcement officers and citizens. p. 31
This last sentence, I think (but I am not sure) is the one you are referring to. I don’t like to guess at this. All she is saying there is that where *prior existing* cause is the basis for the search, it must be 1) reasonable; and 2) approved by a neutral magistrate. Since you have abandoned the “border search” issue (as perhaps a general exclusion) to the First, I don’t see what you are saying. While I don’t necessarily agree with her interpretation, I will admit that it is a common one, and it also leaves room for exigent circumstances, waiver by consent, and all of the ways that we have found to put poor people in jail.
What about my comments about 1Ls. You are complaining about one round of a legal battle that you lost. You lost because you (or your team) was unable to convince a judge of something. This is precisely the same as 1Ls who complain about not getting good grades because they couldn’t convince a professor of something. As lawyers, we might think that we have been right all along, but it doesn’t matter, unless we can make the law fit our client’s interests, and complaining about losing won’t help.
Comment by S. COTUS — August 30, 2006 @ 2:33 pm
S.COTUS
I will try again. Maybe this spoonfeeding will be enough:
Here’s a quote from the judge:
“It [i.e., the 4th Amendment] also requires prior warrants for any reasonable search, based upon prior-existing probable cause, as well as particularity as to persons, places, and things, and the interposition of a neutral magistrate between Executive branch enforcement officers and citizens.”
This quote, as I have said repeatedly, is not an accurate statement of the law. Why, because it flatly states that a warrant is “require[d]” for any “reasonable search”. That is simply not true as the border search described in Flores-Montano was done without a warrant and was, at least according to the Supreme Court, a “reasonable search”. (Plus, I didn’t see the intervention of a “neutral magistrate” in that case either, another requirement, according to the judge. Also, the quoted language confuses the particularity of warrants with the reasonableness of a search.)
So, S.COTUS, yes or no, do you think that the quoted statement by the judge (page 31) is an accurate statement of the law? It is a simple question.
The upshot is that, as I have repeatedly stated, the judge simply got the basics about the Fourth Amendment wrong. I did not say whether her ultimate conclusion was wrong. And I argued that this (along with the over-the-top language and sloppy drafting) creates legitimacy issues.
Comment by federalist — August 30, 2006 @ 3:12 pm
But the quote doesn’t say what you say it says. It says that when a search is “based upon prior-existing probable cause” it requires a warrant. This is different than what you are characterizing it as saying.
As to whether it is a correct statement of the law, there are currently some disputes pending in the lower courts regarding whether “exceptions” (which might be exclusions) to the warrant requirement apply when there is “prior-existing” probable cause. But, all of the examples that come to mind (exigent circumstances, community caretaker, inventory etc.) involve probable cause that was not “prior-existing.”
Comment by S. COTUS — August 30, 2006 @ 4:15 pm
Not sure your attempt to explain what the judge is saying is correct, but let’s assume that we can ignore the comma and add a “that are”, she’s still wrong because says that the “It”, i.e., the Fourth Amendment, requires “particularity”, which is not true, and the interposition of a neutral magistrate which is not true, given the existence of non-warranted searches (which are issued by .
Maybe, and I think it a huge stretch, one can say that the sentence is very garbled. So she’s either flat wrong, or someone who cannot articulate a basic understanding of search and seizure law.
As for your “prior” discussion, I cannot believe that you are willing to even defend the awkward phrase “prior-existing probable cause”. The bottom line is that a search comports with the Fourth Amendment if (a) warrant is issued based on probable cause or (b) prescribed circumstances are present that are deemed “reasonable”. There is no “probable cause” for border searches, administrative searches (e.g., restaurant inspections), courthouse searches et alia.
You should quit defending the judge. Face it. She didn’t do a very good job.
Comment by federalist — August 30, 2006 @ 5:17 pm
Now that I see what phrase your argument is about I see your point. But it took me a few tries, because her wording seemed clear and within the mainstream to me. I looked at it again, and I see why you see it a different way. But it took me a few tries to see it your way.
Whether she wrote a “clear” opinion or not is a matter of perspective. The constitution is clear to some people. In many contractual disputes, both sides think that the language is “clear” but somehow disagree.
The constitution could be a bit clearer.
Now, does this mean she did a good or bad job? There are many, many, unclear opinions out there. In practice, we see this all the time. Even in courts where judges sit on panels or the Supreme Court, vagaries creep in all the time. This is the nature of the practice of law.
Whether she is a good judge or not is a matter of opinion as well. She was good enough to be nominated and confirmed. Whether her opinion will be reversed or not will have little to do with that statement, which probably is dicta, anyway. My hope is that the merits of the decision will not be decided on political grounds, but everyone seems to be hoping that it will be based on the politics of the day.
But, as a practical matter, by getting the decision out quickly, she DID do a good job, since she passed the issue closer to the Supreme Court which is where this will end up. It would be a tragedy if Americans had their phones illegally tapped for one day more than necessary just because a judge was busy trying to make their opinion read better, and it would be a tragedy if Arabs (who I think we can all agree are the enemy) were able to communicate with the compatriots in the US without being subject to legal interception which some people say is 100% effective.
Comment by S. COTUS — August 30, 2006 @ 5:34 pm
Whether she is a good judge or not is a matter of opinion as well. She was good enough to be nominated and confirmed.
This is not a partisan comment. Before Bork’s nomination, it was rare for judicial nominees, especially ones to district courts, to receive very much scrutiny. Anna Diggs Taylor was nominated by President Carter. So, not only did she receive very little scrutiny, but she was probably appointed precisely for her liberal credentials as existed at the time, including her civil rights work. Now, there is absolutely nothing wrong with being rewarded for a legal career that promotes civil rights, but the liberalism of the period during which Anna Diggs Taylor earned her liberal credentials is the kind of Brennan liberalism that is no longer present on the Supreme Court. It’s the kind of liberalism that viewed Senator Goldwater as an American incarnation of Hitler. It is neither suprising that she is hostile to the Fourth Amendment nor that she fails to understand its basic contours — and it has nothing to do with the clarity of the drafting during the Constitutional Convention; she probably views herself as an architect of a liberal prophylactic for a core Constitutional liberty, much as did liberal Justices tinkering with criminal procedure in Mapp v. Ohio and Miranda v. Arizona. It is not that the Constitution isn’t clear; it’s that liberal judicial gloss isn’t the Constitution. Anna Diggs Taylor may be a civil rights lawyer who remembers a time when liberal judicial gloss was the only way, from her perspective, to obtain social justice. But that’s no excuse for her disturbingly erroneous opinion.
Comment by Commentator — August 31, 2006 @ 12:39 am
Commentator, Are you saying that the result of the opinion (which relies very little on that ambiguous statement, anyway) is incorrect? Considering that this is a hotly contested issue, and the administration did a horrendous job of describing their position in legal terms (not political or ambiguous “national security” terms) to me it is fairly obvious why they lost. Whether they could have done better another question.
I don’t see how you claim that your comment isn’t partisan when it amount to saying that certain ways of interpreting the constitution are no longer politically popular, and this judge is a relic of those days. While it is cute to claim that the constitution isn’t ambiguous, this is more of a rhetorical device employed by people who wish to apply their own gloss to it. In all cases in which I have been involved a dispute over the meaning of the constitution, I have claimed that it was unambiguous. 100% of the cases. Because I am a pretty good lawyer, I was able to convince people of my views, about 75% of the time. Ironically, the decision-makers involved, even when they sided with me often might pause for a bit more reflection and decide that things were somewhat ambiguous. (Most of these disputes had little to do with the 4th amendment.) Perhaps they were lying, because the only way to honestly interpret the unambiguous constitution is to agree with me. This is a fact and cannot be argued with. Anyone who disagree with me be a liberal and, uh, hates America or something. Right?
While I wasn’t really paying attention to the process pre-Bork (and I don’t know if you have any inside information on this), even non-controversial judicial nominees are subject to a great deal of scrutiny, and their writings are always read by someone or other.
Comment by S. COTUS — August 31, 2006 @ 9:44 am
S.COTUS:
I hardly think the judge’s formulation of the Fourth Amendment is merely ambiguous. It is at the very very least fatally garbled–and that is giving a very generous benefit of the doubt–since the plain meaning of “It [i.e., the 4th Amendment] also requires prior warrants for any reasonable search, based upon prior-existing probable cause . . . .” is either (a) Any time there is “prior” probable cause (whatever that means), a warrant is required or (b) that any “reasonable searches” must have warrants, and both of these formulations are wrong. And the quoted language is flat wrong with respect to the neutral magistrate and the “particularity” formulation.
Face it S.COTUS, defending this judge’s handiwork is an exercise in futility.
Comment by federalist — August 31, 2006 @ 12:37 pm
(Most of these disputes had little to do with the 4th amendment.)
Then they are mostly irrelevant to our discussion of the 4th Amendment. In any event, the 4th Amendment is not ambiguous. It contains a standard that must be applied — reasonableness, but it is not ambiguous, e.g., reasonableness does not suggest either reasonableness or unreasonableness.
While I wasn’t really paying attention to the process pre-Bork
Then why are you offering an ignorant opinion on it…?
Considering that this is a hotly contested issue,
My kids hotly contest that it isn’t their bedtime when 7:00 PM rolls around. They’re wrong. As soon as I hear the Jeopardy theme song, it’s time to go beddy-bye-bye.
Comment by Commentator — August 31, 2006 @ 12:54 pm
I don’t see how you claim that your comment isn’t partisan when it amount to saying that certain ways of interpreting the constitution are no longer politically popular, and this judge is a relic of those days.
Any historian of any political affiliation could make this historical observation. It is a non-partisan statement. I never said I disliked President Carter or liberals. So there’s no need for you to defend President Carter. Calm down.
Comment by Commentator — August 31, 2006 @ 12:57 pm
Commentator, Having been involved in no less than seven post-Bork confirmations (not of Supreme Court Justices, however), I have a pretty good grasp of the confirmation process. So, I probably know more about the process than most lay people do. I simply was too young during the Bork years to be involved in the process at that point. If you are going to claim that there was no scrutiny of pre-confirmation writings pre-Bork, I am all ears, but this would conflict with my knowledge of the process.
If the Fourth amendment was not ambiguous there would be little or no need for actual litigation over the issue. Everyone would know what it means. Strangely, on a daily basis courts come to conclusions – often in direct opposition to each other – on the interpretation of the Fourth. Granted, I always tell people that my position is unambiguously supported by the text of the Fourth, but everyone knows that such comments are for non-lawyer ears only, because they are, well, ridiculous. Indeed, it is a fair bet that anyone who starts an argument with the word “clearly” is the loser, because he does not understand the nuances of what he is arguing.
Outside the word “Reasonable searches” which is, ambiguous, itself, as I explained earlier, there is ambiguity in the fourth between the two interpretations, namely, whether unreasonable searches can be sanctioned by warrant, just what is covered by it (e.g. who are “the people” and what are “houses” and “papers”), what is “particularity” and the list goes on. I encourage you, however, to look beyond the ambiguities and claim that it is easy, I think it is cute to hear people talk like that.
Perhaps other parts of the constitution are less ambiguous. Maybe the eleventh amendment is a bit easier.
I don’t really care about Carter or anything like that. I don’t vote. I don’t belong to a political party. However, to claim that this person represents a bygone era of politics and law, seems as partisan as it can get.
Comment by S. COTUS — August 31, 2006 @ 2:01 pm
SCOTUS: If you are going to claim that there was no scrutiny of pre-confirmation writings pre-Bork
Stop grappling with straw-men. What I wrote was the following: “Before Bork’s nomination, it was rare for judicial nominees, especially ones to district courts, to receive very much scrutiny.”
SCOTUS: If the Fourth amendment was not ambiguous there would be little or no need for actual litigation over the issue. Everyone would know what it means.
This is not true. You are conflating “meaning” and “ability to forecast application”. It is possible that everyone knows what the phrase means, but no one knows how it will be applied in unforeseeable fact patterns that arise in the future and how the caselaw derived from those cases will be influenced by the judges tasked with interpreting the Constitution and constitutional law. That there is an open-ended process for interpreting the phrase over time does not render the phrase meaningless or of variable meaning for any particular person at any particular time.
SCOTUS: However, to claim that [Carter] represents a bygone era of politics and law, seems as partisan as it can get.
Not really. President Carter no longer appoints judges to the federal judiciary. He has not been replaced by Presidents who have appointed the same kind of judges to the federal judiciary — quite to the contrary. Anyone who takes his civic duty and is qualified to talk on such issues would know that. Perhaps that explains your strange admission: “I don’t vote. I don’t belong to a political party.”
Yes, and you also don’t know what the &%$# you’re talking about.
Comment by Commentator — September 1, 2006 @ 11:25 am
Uh — what about Fortas, Haynsworth, Carswell? I’d call it scrutiny.
Comment by Norma Chase — September 6, 2006 @ 12:28 pm