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 He has not been replaced by Presidents who have appointed the same kind of judges to the federal judiciary — quite to the contrary.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.

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.

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.

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.

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.

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.

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.

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.

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.