Banality, Thy Name Is Althouse

If I were a student at Wisconsin Law, I’d ask for my money back based on this alone.

TO end her opinion in American Civil Liberties Union v. National Security Agency — the case that enjoins President Bush’s warrantless surveillance program — Judge Anna Diggs Taylor quoted Earl Warren (referring to him as “Justice Warren,” not “Chief Justice Warren,” as if she wanted to spotlight her carelessness): “It would indeed be ironic if, in the name of national defense, we would sanction the subversion of … those liberties … which makes the defense of the nation worthwhile.”

Yeah, let’s ignore the quote itself and how profound Warren’s statement is in these times when the administration is trying to gut the Constitution in the name of national security and focus on Judge Taylor’s failure to slap a “Chief” in front of the “Justice” when writing her opinion. That invalidates the whole thing!

UPDATE: Glenn Greenwald has a lot more, including the fact that Althouse has been forced to admit that she has loudly criticized this case and Judge Taylor but knows nothing about this case and has only skimmed the opinion. Yet she gets a forum on the Op-Ed pages of the Paper of Record to admonish Judge Taylor for, for instance, the “incomplete” opinion:

But it is nothing short of humiliating that Althouse had no idea that any of that happened in this case. She hasn’t followed this case at all. She has no idea what took place. Just as is the case for her good friend and colleague, Orin Kerr, whom she cites for support in her Op-Ed, Althouse is criticizing Judge Taylor for an “incomplete” opinion because Althouse is entirely ignorant of the fact that the DoJ chose not to advance any substantive arguments on the merits of these claims. She quotes Kerr to accuse Taylor of issuing an “incomplete” opinion, but Kerr — like Althouse — simply did not know that the DoJ made no substantive arguments that went to the merits of this lawsuit (a failure which arose from the fact that the DoJ, reflecting the Bush administration’s belief that it is above judicial review, argued only that the court had no right to decide these issues).

Although these critical events in this lawsuit were all public and reported by major newspapers, Althouse learned of them for the first time — as she reluctantly admitted — by reading the Comment section at Volokh on Monday, after which she had to correct a completely false factual claim she made about the case. Her ignorance about these matters was not concerning some obscure legalisitc point. Rather, she was just blissfully and inexcusably unaware of the most important fact necessary for understanding Judge Taylor’s decision — that the DoJ failed to raise any of the issues which she and her good friend, Professor Kerr, find so “immensely difficult.”


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17 Responses to Banality, Thy Name Is Althouse

  1. Gabriel Malor says:

    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. zuzu says:

    Gabriel, I haven’t been given a forum on the Op-Ed page of the Times to argue that the president’s argument that he’s above the law merits a serious discussion.

    She was. And she started off with a completely irrelevant nitpick about a quote at the very end of the opinion, followed by a lot of whining about how Judge Taylor obviously just came up with a conclusion and thinks that she’s so entitled to pass judgment on the president’s actions when the president *said* he was above the law, and what right does she have to talk about kings, because he’s not claiming to be king, silly!

    All without actually engaging the substance of the opinion.

    But, hey, if you’re unhappy with the level of discourse on this blog, you might be happier over at Althouse’s place.

  3. Gabriel Malor says:

    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.

  4. zuzu says:

    Gabriel — read the post update.

  5. piny says:

    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.

  6. zuzu says:

    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.

  7. piny says:

    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.

  8. Thomas says:

    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.

  9. piny says:

    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.

  10. zuzu says:

    God, reading further on Greenwald’s site, I see that Althouse and Kerr both took issue with the fact that Taylor referred to “undisputed” facts throughout the opinion. But in a summary judgment motion, if one does not dispute the facts, they are deemed undisputed. Since the DoJ repeatedly refused to dispute the ACLU’s facts or add any of its own, Judge Taylor was bound by law to rule that the facts as presented by the ACLU were undisputed.

    In other words, Kerr’s critique (which Althouse endorsed) of the court’s opinion is just wrong — factually wrong. The court directed the DoJ to address the substance of the claims and the DoJ simply failed and/or refused to do so — facts which neither Kerr nor Althouse even knew when attacking the court’s opinion. And there is nothing “arguable” about it — if one party moves for Summary Judgment and presents competent evidence supporting its factual claims (as the ACLU indisputably did here), and the other party fails to dispute those facts with competent evidence (as the DoJ indisputably did here), then those facts are “undisputed,” by definition.

  11. raging red says:

    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.

  12. Thomas says:

    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.

  13. Raincitygirl says:

    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.

  14. Madison Guy says:

    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.

  15. Thomas says:

    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.

  16. zuzu says:

    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.

    Althouse had said that Taylor was “barely literate,” which is really of a piece with Ann Coulter’s statement that Maxine Waters will be working a job wearing a paper hat in a few years.

    Raincitygirl, what Thomas said. Though with one huge caveat: the Bush Administration has been gutting the career civil service at the DoJ, overriding decisions made by US Attorneys, installing political appointees at all levels, and ignoring civil rights, particularly of the type that Anna Diggs Taylor fought for during her legal career prior to her appointment as well as her civil rights activism. Remember, FISA was passed in response to federal warrantless wiretapping of figures like Martin Luther King, Jr. (at the order of J. Edgar Hoover), so Judge Taylor is well aware of the consequences of warrantless wiretapping.

  17. raging red says:

    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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