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  1. Gabriel Malor
    Gabriel Malor August 23, 2006 at 11:20 am |

    zuzu, Althouse was trying to highlight that the opinion was carelessly written. Yeah, this particular point seems petty, but perhaps it would make more sense if you considered it in context.

    Moreover, I think the following paraphrase may be apt:
    “Yeah, let’s ignore the bulk of the article itself and how cogent the observation of carelessness on the part of Judge Talor and focus on Althouse’s failure keep herself from getting a little snarky in an Op-Ed in the NYTimes. That invalidates the whole thing!”

  2. Gabriel Malor
    Gabriel Malor August 23, 2006 at 11:50 am |

    Oddly enough, I find this site much more interesting than Althouse’s. The posts here are more varied (within the theme of the blog, anyway), and generally more thought out. Incidentally, I used to read Althouse’s blog (about a year ago, I think) but she got way too caught up in yelling about her critics and policing the comments. It became a kind of protracted blog-war. And that’s just not interesting to me. (See also, Ace and Jeff G.–at least some of the time.)

    Of course, if you asked me why I bother to read feministe I’d probably have trouble telling you. Do I agree with much that gets said here? No. Am I often disappointed by the hating in the comments? Yes. On the other hand, sometimes things just get startlingly good around here (for example the comments in the WIC post–which you may or may not know was referenced all over the Web including on author John Scalzi’s blog, another lefty which I happen to read). The posts usually interest me and it is undeniable that the folks around here see the world in a vastly different way than me.

    However, that’s not going to stop me from responding when I think you or the others or the commenters are wrong about something. If I see things differently, that’s an opportunity to pursuade. Unless this blogging thing is just about talking to ourselves or our fellow travelers, I’m going to presume that it’s okay to advance a different opinion. If you want me gone, just say so.

  3. piny
    piny August 23, 2006 at 11:59 am |

    zuzu, Althouse was trying to highlight that the opinion was carelessly written. Yeah, this particular point seems petty, but perhaps it would make more sense if you considered it in context.

    But that charge of carelessness was based on severe lack of care in learning the facts of the case that opinion took into account. Plus, the “chief” thing was a nitpick, and a stupid one. Her op-ed gets it wrong:

    Immensely difficult matters of First and Fourth Amendment law, separation of powers, and the relationship between the Foreign Intelligence Surveillance Act and the Authorization for Use of Military Force are disposed of in short sections that jump from assorted quotations of old cases to conclusory assertions of illegality. Orin S. Kerr, a law professor at George Washington, told The Times that the section on the Fourth Amendment is “just a few pages of general ruminations … much of it incomplete and some of it simply incorrect.”

    For those who approve of the outcome , the judge’s opinion is counterproductive. It will be harder to defend upon appeal than a more careful decision. It suggests that there are no good legal arguments against the program, just petulance and outrage and antipathy toward President Bush. It helps those who have been arguing for years about result-oriented, activist judges.

  4. piny
    piny August 23, 2006 at 12:11 pm |

    I’d like to know how it’s activist to hold the president to the law passed by Congress.

    It’s like she never heard of the Constitution.

    Or the JUDICIARY BRANCH.

  5. Thomas
    Thomas August 23, 2006 at 12:52 pm |

    I think Greenwald’s analysis adds something — not just about Althouse, but to the general understanding of the case. One has to read Taylor’s opinion with the context in mind, understanding that the grounds of the debate were the grounds of the administration’s choosing.

    The DOJ made a conscious choice to stand pat on the threshhold issue of whether secrecy provided a complete defense. There was guy once that did that in a capital case, and his name was Charles I. When he lost the jurisdictional issue, they cut off his head. Litigators ought to take a lesson from that.

  6. piny
    piny August 23, 2006 at 12:55 pm |

    The DOJ made a conscious choice to stand pat on the threshhold issue of whether secrecy provided a complete defense. There was guy once that did that in a capital case, and his name was Charles I. When he lost the jurisdictional issue, they cut off his head. Litigators ought to take a lesson from that.

    The FBI probably just opened up a feministe manila folder.

    Exactly. Of course the judiciary is going to challenge unchecked executive power as a justification; they exist because that principle is not one the founders wanted to uphold.

  7. raging red
    raging red August 23, 2006 at 1:18 pm |

    How funny that Althouse criticizes so-called “activist judges” and describes them as “deciding what outcome they want, based on their own personal or ideological preferences, and then writing a legalistic, neutral-sounding opinion to cover up what they’ve done,” when she did essentially the same thing in her criticism of Judge Taylor’s opinion. She obviously just read the news reports about the decision, then read the opinion and rattled off her criticism that the opinion was incomplete because the judge didn’t address the government’s strongest arguments, when it turns out there was a very good legal explanation for why the opinion was written the way it was. Althouse’s criticism was transparently based on her “own personal or ideological preference” for the Bush administration’s tactics. In her haste to criticize the decision, she failed to look into the procedural history of the case and chose to mock a federal judge instead.

    Since, as Glenn Greenwald points out, the government chose not to address the merits of the case and instead gambled on the state secrets and standing issues, the judge could have simply issued a one sentence opinion on the merits, finding in favor of the plaintiffs, since the government didn’t put up a fight on those issues. This is first year Civil Procedure stuff, so Althouse should really be embarassed.

  8. Thomas
    Thomas August 23, 2006 at 1:52 pm |

    Hah! Piny, rereading it, I can see how some nut could misread that. Unlike the freepers, I’m not advocating cutting off anyone’s head. My point (for the terminally dense or those intent on willful misreading) is that when one puts one’s eggs entirely in the threshhold issue basket, one is a bad fucking lawyer, and can get one’s client in a lot of fucking trouble. Charles I refused to answer the charges, asserting a lack of subject matter jurisdiction. He lost a case with rather serious consequences. If the DOJ had a good argument on the merits, they should have made it, instead of standing on the threshhold issue alone. They, too, have lost a case with rather serious consequences for their client. I’m not versed enough in the argument to know whether they can fix the record without a remand, but not making arguments below often bars one from making them on appeal. I think they have badly misplayed this and ensured that the decision is an up-or-down on the President’s attempt to irretrievably insulate all surveillance from any judicial review ever. That, before judges, is generally not the ground one ought to fight on; yet it is the ground they picked.

  9. Raincitygirl
    Raincitygirl August 23, 2006 at 6:35 pm |

    And here I thought the DoJ hired the best and brightest, and was a prestigious workplace for an ambitious lawyer. Sounds like either their recruitment standards have fallen or the most competent senior lawyers have taken early retirement.

  10. Madison Guy
    Madison Guy August 23, 2006 at 7:08 pm |

    Do the Bushies’ feelings about black people have something to do with their characterizing the ruling by Judge Anna Diggs Taylor, who is black, slamming Bush on the NSA warrantless spying as “sloppy” and “careless”? Just wondering, is all.

    Meanwhile, I know it’s a cheap trick to poke fun at Ann Althouse — like shooting fish in a barrel — but I can’t help contrasting her words in a NYT Op-Ed last November with her words today, when she lambasts Judge Taylor.

    Not only is today’s analysis idiotic, but she committed exactly the same act of “carelessness” last fall she accuses Judge Taylor of today.

  11. Thomas
    Thomas August 23, 2006 at 7:40 pm |

    RCG, they hire good people. This is not carelessness by some junior staff lawyer. This was a high-level, bet-the-ranch strategy decision. They would not put the facts forward for the judge to rule on, even with loads of confidentiality protection (the DOJ brief Greenwald linked to discloses that important facts were put before the judge in camera, for her eyes only — presumably, they could have addressed the merits by putting the specifics before her this way). They decided that their first and last position is this: “None of your business, Judge.” No amount of learning or hard work can prevent an error arising entirely from bad judgment.

  12. raging red
    raging red August 23, 2006 at 11:52 pm |

    In the comments at Volokh about Althouse’s op-ed, there were blatantly racist comments calling the judge “Sistah Diggs Taylor,” saying that she was appointed as part of Carter’s “let’s put unqualified minorities on the bench” plan, and saying that she’s unqualified to drive a bus, let alone be a judge.

    I don’t watch a lot of television news, I mostly read it online, so I wasn’t even aware that Judge Taylor is black. How the fuck do these racist fuckwits sniff this shit out?

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