If you're a judge, your first responsibility is of course to reach the conclusion that you think is legally right, and to explain it using those arguments that you think are most sound. But once you have that figured out, presumably you'd want to maximize your chances of being affirmed — since by hypothesis your approach is the correct one, and you'd like to see it kept rather than being overruled. And that must be doubly so when you not only think the result you reached is right, but are passionate about it.
You may sometimes render a decision knowing that it will be overruled, for instance because you think this is the decision mandated by current precedent, but you think the higher court will overrule that precedent or even somehow evade it. But once you figure out what you think is the right reasoning, it makes sense to present it as persuasively as possible, at least if you think it's likely that the decision will be appealed. In some cases, you might conclude that the higher court judges just won't care what you write, because they'll make up their minds based on their own considerations. Yet even in ideologically polarizing cases, there are usually at least some judges who may be swayed by persuasive argument, especially from a fellow federal judge.
By that standard, the judge's opinion in today's NSA eavesdropping case seems not just ill-reasoned, but rhetorically ill-conceived. A careful, thoughtful, detailed, studiously calm and impartial-seeming opinion might have swung some higher court judges (and indirectly some Justices, if it comes to that). A seemingly angry, almost partisan-sounding opinion ("[The orders] violate the Separation of Powers ordained by the very Constitution of which this President is a creature," emphasis added, thanks to a caller for pointing this out) is unlikely to sway the other judges — especially when the opinion is rich in generalities, platitudes ("There are no hereditary Kings in America and no powers not created by the Constitution"), and "obviously"'s, and poor in detailed discussion of some of the government's strongest arguments.
Jeff Rosen once faulted Justice Blackmun for a judicial approach that was so emotional that it undermined his ability to implement the very ideas that he passionately believed; his "tendency to let his heart get the better of his head," Rosen argued, would "deprive[] him of lasting influence." (Others have argued that Justice Scalia's pugnacity might have a similar effect.) It seems to me that by writing an opinion that was too much feeling and too little careful argument, the judge in this case made it less likely that the legal approach she feels so strongly about will ultimately become law.
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- NY Times article on NSA wiretapping quotes bloggers.--
- Should We Care About The Reasoning In Judge Taylor's Opinion? :
- Hardly a "Hard-Left" Position:...
- Question About the Original Meaning of 4th Amendment?--
- Lower Court Opinions Are Briefs to Higher Courts:
- The NSA Eavesdropping Opinion and Standing:...
- The NSA Eavesdropping Opinion and the First Amendment:
- The NSA Eavesdropping Opinion and the Fourth Amendment:
- Federal District Court Decision Striking Down NSA Eavesdropping Program,
Not necessarilly. It could merely be the approach you felt compelled to take due to stare decisis, and you actually think it's the wrong one. In which case you might want a higher court, not so bound, to overturn your decision on appeal.
Judges are familiar with judo, aren't they?
1. Who knows what will happen on appeal? Your influence will be slim to nill anyway. Might as well make your political point in a way that will get media attention, and that will grant some new authority to these platitudes, while you have the chance.
2. This is all political anyway. She and those after her are pretty likely, I think, to decide this based on grand policy considerations, not tricky legal arguments. Might as well present the rhetorical argument, to see how it goes over. If it goes over well, maybe others will want to jump on aboard the good-guys train too.
3. At least in the final decision, you're going to have to use rhetorical flare to get through to the Bush administration. You're going to have to embarass them into compliance, not persuade them.
4. Unless there's some emotion involved, people are probably going to just let the President do what he wants. Somebody's going to have to get passionate at some point if they're going to gather the nerve to stand up to Bush.
Spoken like the Unfrozen Caveman Lawyer, and about as persuasive.
What if Judge Taylor actually wants the president's theories of his powers upheld? Why not write an flimsy opinion to make an appeal easier and bump the correction up to a higher court, whose opinion will have a compelling influence on more courts than her own?
It is possible, though not certain, that this is as slam dunk a 4th Amendment violation as one gets, if the facts are particularly harmful to the government (wiretapping without any standard of cause purely domestic conversations, for instance).
If this was revealed in camera and in a classified setting, Taylor's opinion reads less like a perusasive piece and more like the type of chastising Posner gives when the government tries to get away with a whopper in front of him (generally involving immigration law).
But one has to wonder, in light of that obviousness, why Judge Taylor didn't endeavor to be more clever in stating her opinion?
In particular, Part II (state secrets) is frighteningly akin to a 1L's first research memo in Legal Research and Writing - several pages discussing several cases in isolation, with page-long block quotes, and extremely limited and disjointed application to the instant case. I read the opinion over twice, and I'm still not exactly sure what the basis for the holding is.
I would also argue that this opinion isn't so much partisan as it is protective of the judiciary (and the legislature). Party politics too often trump the tension that is supposed to exist between the various branches of government, and the tone of this opinion could be viewed more as protective of that tension rather than partisanship. If she is scornful, it is scorn toward an Executive overreaching, not a Republican overreaching. I think we would all be better served if members of the various branches, and I would single out Senators, were more protective of their branch of government than their political party.
I don't say everything is political, but isn't this issue? Are you telling me, to the contrary, that the Constitution is totally clear here (4th Amendment/separation of powers)?
To the rest, I think y'all are awfully elitist. Maybe she's not a rhetorical/political genius; I won't say she is. But is it that bad? If the Supremes didn't have their extraordinary support staffs, I don't think their every opinion would be so brilliant either. Consider the amount of crap/info/pressure she had to deal with here, before even assembling an opinion.
In any case, disregarding quality, my point was simply Arthur's: I think she had more potential writing to the public than she did writing to the reviewing courts. I guess ideally she could have done both, but that would have been an extraordinary feat.
As a Soviet tank officer said of the originally designed engines for the T-64 tank, "... so bad they were DISGUSTING."
We are probably being overly elitist. Granted, Judge Taylor doesn't have the same support staff the Supreme Court Justices have--as a Senior District Judge, she presumably has a single law clerk and maybe a judicial assistant. But the quality of the writing and reasoning isn't just bad by the standards of the federal bench (an admittedly high bar to clear), but also bad by the standards of the segment of the bar that normally deals with federal constitutional issues. That's still a high bar, which I think is your point, but it's a bar that we should generally expect federal judges and their clerks to clear. I for one would be embarrassed to have had anything to do with this opinion, no matter how much I might agree with the outcome.
My point was just that the poor quality of this opinion might be the result of a rush to get it out the door, possibly to draw some publicity, rather than of a lack of intellectual or rhetorical ability on the part of Judge Taylor or her staff.
Absolutely. It was written so the moonbats at places like Kos and the democratic underground could have a couple of sentences they didn't understand to bandy about.
Says the "Dog"
Communicating with the parties, though, is different. She's trying to tell the losing party here that it's arguments are, in her view, completely wrong. Has she done so? I'd say yes. Will the Sixth Circuit do so as well? I think yes again, though probably with different rhetorical emphasis.
I agree with Martin H. that it looks like a 1L project. One law clerk is no excuse- what are the odds the other judges would've turned her down if she had requested the loan of an additional clerk or a staff attorney for one of the most important cases ever filed in their courthouse? Would a local law school have refused to help her find some sharp and ambitious interns to work with her?
Sloppy writing is everywhere: look at the citation to another case followed by the oh-so-helpful "which is akin to our inquiry in the instant case"-- how does junk like that stay in an opinion? Or, "Defendants argue that Plaintiffs do not establish their standing." Or "The Youngstown court made short shrift of that argument . . . ." Or the especially pompous, and poorly written bit near the end- "Plaintiffs have prevailed, and the public interest is clear, in this matter. It is the upholding of our Constitution."
It's all so circular and self-congratulatory. Maybe she thought that enough ostentatious rhetoric would get the NPR commentators cooing over her commitment to the ultra-capitalized "American Democracy" and "Checks and Balances," and proclaim her work a stunning rebuke to the Bush administration. Maybe she was in a rush because she hoped to get some kind of ABA award? Whatever she thought, I think most lawyers will find this pretty thin material. I doubt it will be much help to the court of appeal either.
1) It says who wins;
2) It got her name in the papers.
Oh, and those "it is all political" comments? Ha Ha. Two words for you: Solomon Amendment - result? 9-0.
"Need some wood?"
1. TSP warrantless taps are chilling on speech between the press and terrorists because their expectation of privacy is gone. Implication being that FISA warrants are a pain to get, take a while, so absent warrantless taps, these conversations happen without difficulty. Trust on both sides as it were. Press and Terrorists. Neither will rat the other out. (says something interesting about the allegiance of the press though)
2. Elsewhere, there is the presumption that FISA warrants occur instantly without pain and therefore the executive is over the line using this unconstitutional method, when the solution to protect the country is simply to follow the FISA Law.
I don't see how you can have it both ways.
Once, a good friend--who is a career appellate law clerk--said to me that "the less you say below, the less chance of f*&king it up and getting reversed." I think he was only half kidding.
Here is a theory: perhaps the judge wrote it that way to make a point, and ruled against the government on the standing issue so as to gurantee that there would be an appeal, and further judicial review.
Yes that's bad. There is nothing wrong with wanting our federal judges to be rhetorical geniuses. They are supposed to be at the pinnacle of their profession, not a random lawyer of indifferent skill. Warranted elitism is no vice.
You use the term "enemies" quite a bit. I'm not sure even the government's own descriptions of the program provide justification for your blanket use of that term, and of course the government has studiously avoided submitting evidence to support its allegations.
I do think you are right that you can't have instant painless authorization to wiretap and complete protection of freedom of speech. However, the democratic solution is obviously a compromise, not the granting of unilateral sovereign power to the executive. FISA represents a compromise between protecting individual privacy and national security. Why should the executive change this? Bush never explain why(that I know of) except for spouting the usual "War on Terror" rhetoric. FISA is obviously a burden on preventing wiretapping where probable cause can't be established. But do wiretaps lacking probable cause protect national security? My gut answer is no, although I doubt there's an easy answer. Nor has the Executive explained how FISA would prevent NSA from wiretapping conversations where probably cause is established. The answer there seems to be they can't (even though it doesn't "occur instantly without pain"). So it seems to me that we're compromising our speech and privacy rights and getting precious little security in return.
Frankly, I'm happy the judge got to the meat of the case without letting it stall in the procedural morass that those "thoughtful, detailed, studiously calm and impartial-seeming opinions" tend to get caught up in.
But, I think this all boils down to is standing. I really do. I think Scalia and the LCs of the court will buy into the 4th Amendment claim, I don't know about Justice Thomas or CJ Roberts and Justice Alito, but I do think that almost all of them will buy the Fourth Amendment claim. The First Amendment claim, I think is a big stretch, but...we will see. State secrets, I highly doubt that will hold.
So I think it comes down to standing, and that was horribly written by Judge Taylor, and I don't know what to think about it yet. I'll look into the precedent she citied.
Another example: many have criticized Scalia for the rhetorical harshness of his opinions. But his very bluntness served as a clarion call to conservatives, who responded with activism that has put two more strong conservatives on the Court.
The President only has 15 days to conduct warantless wiretaps after war is declared and umm we are a little past 15 days now....
The AUMF is a declaration of war. Article I Section 8 gives power to Congress to declare war, but it leaves the way congress can declare war up to them. It does not say that Congress must issue a declaration of war. But, I really do hope you are joking when you say that since we are in war the Commander-in-Chief can decide anything can be a military threat.
There is a reason only congress can supsend the writ of habeus corpus and that is only in rebellion or in war. It sounds like Lincoln's legacy is trying to re-emerge in faeroe's cry that Bush has the ability to break the constitution.
And Anonymous 777 I completely agree. I dont know what type of judge, Judge Taylor is, but I did love how she mentioned the Federalist Papers and mentioned the Entrick case which gave the historical background behind the Fourth Amendment.
Also, did we really have to call a surveillance plan "project minaret"?
In New Jersey, for example, Democrat Congressman Rob Andrews quickly issued a written statement citing the decision, and demanded that the President immediately cease using the NSA program, and to gather intelligence only through constitutional procedures, i.e., FISA. Andrew's Press Release is posted on Politicsnj.com, a political website in New Jersey. As you can see, Andrews posted the release allowing for Comments. In that regard, may have gotten much more than he bargained for!
Was politics the intended consequence? Of course. But it would certainly be irresponsible to charge the judge with deliberately jumping into the political thicket, or of even being a willing participant without evidence. Perhaps the other participants, knowing her inclinations, simply played her that way.
However, the nearly perfect political timing of the decision -- mid-August, during traditional judicial vacation time -- should at least raise some eyebrows. That would apply to both her pressing forward to issue the decision now, and the knowledge that immediate review would be far less likely. Coupled with the fact that it was brought by a litany of interest groups who have persistently support liberal Democrats who pretty obviously went forum shopping to get this result, and you either have a remarkable coincidence of events, or the outlines of an intriguing drama.
Suffice it to say that the dearth of reasoning, her notable failure to at least confront contrary precedent, the breadth of remedial order, the unmistakable and unnecessary partisan shots, the curious timing of the decision, and the past behavior of the judge in the Michigan affirmative action cases, all are at least suggestive of the playing out of a partisan political agenda. Stay tuned -- this isn't over yet.
If the unbiased members of the press in this country want an interesting back story to sink their teeth into, they will dig hard into this one.
While I agree with Eugene's take, I partisanly imagine that NSA lawyers may have been unprofessionally haughty enough to enflame Taylor into the emotional decision.
One of her previous big decisions was in favor of ACLU to remove a creche.
The Fourth Amendment deems unreasonable searches and seizures to be impermissible. My question relates to the reasonability of intercepting communications made by an enemy in wartime. It seems to me to be eminently reasonable to do so, which eliminates an essential element of the alleged violation of the Fourth Amendment.
This seems to me a red herring. Put another way, FISA is a statute and cannot reduce the President's inherent authority to conduct warrantless wiretaps in matters of national security. The Supreme Court strongly suggests this view in its dicta in Katz
and U.S. v. U.S. District Court Also, the FISA Court of Review seems to say the same in Sealed Case 02-001:
It seems very clear from these excerpts (and there are numerous other appellate courts in agreement) that the FISA is not controlling and that the President can meet the reasonability element in matters of national security. If that is indeed the case, no warrant would be necessary.
This is a strawman argument. I did not say that the President can determine anything is a military threat. I do now say that communications with the enemy are potential military threats. I hope you are not arguing that such communications are not. Again, I think that the reasonability of such a determination would control for Fourth Amendment matters.