Comments on: Banality, Thy Name Is Althouse

By: raging red

raging red — Thu, 24 Aug 2006 04:52:13 +0000

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?

By: zuzu

zuzu — Thu, 24 Aug 2006 02:12:33 +0000

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.

By: Thomas

Thomas — Thu, 24 Aug 2006 00:40:46 +0000

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.

By: Madison Guy

Madison Guy — Thu, 24 Aug 2006 00:08:19 +0000

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.

By: Raincitygirl

Raincitygirl — Wed, 23 Aug 2006 23:35:52 +0000

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.

By: Thomas

Thomas — Wed, 23 Aug 2006 18:52:23 +0000

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.

By: raging red

raging red — Wed, 23 Aug 2006 18:18:58 +0000

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.

By: zuzu

zuzu — Wed, 23 Aug 2006 18:03:12 +0000

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.

By: piny

piny — Wed, 23 Aug 2006 17:55:04 +0000

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.

By: Thomas

Thomas — Wed, 23 Aug 2006 17:52:28 +0000

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.