Re: A federal judge rewrites the Constitution on war powers. (WSJ editorial)

Father Greg,
I think you might find Glenn's reasoning interesting, as well as the
background. A weak poorly written decision doesn't necessarily mean that
much. That would not be a basis of appeal anyway. Furthermore, Bush & Co.
would have appealed any decision not favoring their side. Here is the
opinion:
http://glenngreenwald.blogspot.com/

Saturday, August 19, 2006
Ongoing misconceptions about Judge Taylor's opinion

(updated below)

There are still some substantial misconceptions -- and some just outright
factual inaccuracies -- about Judge Taylor's opinion in the NSA case as well
as arguments I and others have made as to why criticisms of her opinion are
overblown and ultimately inconsequential. Orin Kerr responded to the post I
wrote yesterday about the condescending and misinformed Post editorial
criticisms of Judge Taylor. The exchange I had with Kerr in the Comments
section to that post (along with other comments there, as well as plenty of
posts from overnight pro-Bush legal experts in the blogosphere) highlighted
some of the more important and pervasive misconceptions:

(1) There is a fundamental difference between (a) a judicial ruling which
reaches the correct legal conclusions but explains and/or analyzes the
issues poorly, and (b) a judicial decision which reaches the wrong legal
conclusions by using poor legal reasoning, but nonetheless produces
desirable political or practical results. The decision from Judge Taylor is
in category (a), not category (b), and nobody (at least that I have heard)
is arguing that the decision should be celebrated despite its having reached
the wrong legal conclusions.

(2) Nobody is arguing that it is "irrelevant" whether a court does a good
job analyzing the issues before it or in explaining its decision. It is
always preferable for a judge to do a good job in that regard, and a better
opinion with regard to several issues would have been preferable here. The
point is that, in the scheme of things, the quality of the judge's opinion
is entirely inconsequential both in terms of the ultimate outcome of this
case (which will be decided by a higher court) and in terms of the
systematic law-breaking powers this administration has seized.

(3) What I argued yesterday -- that the correctness of the court's legal
conclusions matters much more than the quality of the opinion -- is not some
exotic theory I invented yesterday in order to criticize the Post editorial
or defend Judge Taylor's opinion. To the contrary, that is the core
principle on which appellate review in our country is premised.

Appellate courts cannot and do not reverse judicial decisions because the
opinion was written poorly or because the reasoning was unconvincing. If the
Sixth Circuit ends up thinking that this was the worst and most erroneous
written opinion ever, but nonetheless agrees with the conclusions the Judge
reached but for completely different reasons (on standing, the Fourth
Amendment, FISA, etc.), the District Court's decision will be affirmed, not
reversed. A bad or poorly reasoned opinion is not grounds for reversal. Only
a wrong conclusion constitutes such a ground.

The issue on this appeal -- on every appeal -- is: "Are the court's
conclusions correct?," not "do we agree with what the judge said and did in
reaching that conclusion?" In a garden-variety lawsuit, a District Court
opinion might have a significant impact on persuading appellate judges, but
with issues of this magnitude, the appellate court will review the issues
from scratch, no matter the quality of the lower court opinion. And if the
Sixth Circuit concludes that the NSA program is unconstitutional and in
violation of FISA, Judge Taylor's decision will be affirmed regardless of
how pretty or complete its analysis is.

(4) The army of legal "scholars" who have spent the last couple of days
patronizingly dismissing the Judge's decision have pretty substantial
argumentative holes and misunderstandings of their own. Particularly with
regard to some of the law professors (and definitely the editorialists and
pundits), I question their familiarity with how civil litigation actually
works and is supposed to work (as opposed to how the profound, high-minded
constitutional debates play out in academia and Congressional hearings).

Unlike a law professor who searches out "the literature" in order to find
every argument on an issue about which they opine, courts -- especially
District Court Judges -- decide issues on the facts and arguments before
them, i.e., those that are raised by the parties. If a party does not raise
a certain legal defense, then the judge is under no obligation to address it
(and it is arguably improper if she does). If a party fails to dispute a
particular fact, then it is improper for the court to do anything other than
treat the fact as undisputed.

Although a judge might go searching for legal arguments to consider if, for
instance, there is a pro se litigant as part of the case, where, as here,
the DoJ is before the court arguing in favor of presidential powers, the
District Court has every right to assume that the issues raised by the DoJ
are the ones that need to be addressed, and no others.

The DoJ's Brief was filed under seal and was not even publicly available.
But by all appearances, it seems that the DoJ made the choice to not take
very seriously the substance of the constitutional and legal challenges to
the NSA program in this case, because it basically took the position that
the court had no right even to rule on those issues (because of the "state
secrets" doctrine and because of standing issues, to which the DoJ devoted
the bulk of its efforts -- i.e., basically telling the court it had no power
to decide these constitutional and other legal issues).

Thus, the Plaintiffs' Reply Brief (.pdf) noted that Defendants "have failed
to offer any formal defense to their violation of the law." The DoJ's
principal arguments in defense of its lawbreaking appear to be focused on
claims that (a) the AUMF authorized the FISA violations and (b) the
President's Article II powers cannot be restricted by Congress. See pp.
11-12. But the parts of the court's opinion rejecting both of those
arguments are solid (if not stellar) and, in any event, the Supreme Court
itself in Hamdan almost certainly precluded argument (a) and dealt a severe
if not fatal blow to (b).

But those who have been attacking the court for failing to consider certain
arguments actually have no idea whether the Justice Department made those
arguments in a thorough way or whether they even raised the arguments at
all. I have seen, for instance, oh-so-knowing expressions of shock that the
court did not consider the so-called "border inspection exception" to the
Fourth Amendment when ruling that the NSA program is unconstitutional. But
those who are criticizing the court for failing to address that argument
have no idea if the DoJ raised it, thus revealing the very analytical
incoherence of which they accuse Judge Taylor.

If, as appears to be the case, the DoJ chose not to dispute certain factual
claims (such as the claim that the president's eavesdropping falls within
the mandates of FISA), then the court was absolutely correct to treat that
as an undisputed fact. And if the DoJ failed to raise certain legal issues
thoroughly or even at all, then the fault lies with the DoJ, not the court,
for the fact that those issues played no role in the ruling.

Anyone who is (a) attacking Judge Taylor for not considering particular
arguments even though (b) they have no idea if the DoJ raised those
arguments, is in no position to criticize anyone for poor legal reasoning.

(5) As a very general proposition (with lots of exceptions), opinions from
District Court Judges are typically less thorough and comprehensive than
decisions from appellate courts and certainly from the Supreme Court. In
fact, District Court Judges often issue rulings orally, or in one-paragraph
declarations that are completely conclusory and devoid of any reasoning.

This is due to many institutional factors. Unlike multiple-judge appellate
panels that (a) have a relatively light work load that is attended to
without much urgency and (b) have the benefit of large staffs composed of
the best law clerks in the country, District Court Judges have overstuffed
dockets filled with time-urgent criminal cases and typically two law clerks
to help research and write their opinions, for which the Judge has sole
responsibility.

Some District Judges who are nonetheless very smart simply do not write good
judicial opinions. Some who are dumb or intellectually dishonest write
beautiful written opinions that are just wrong. The quality of judicial
opinions varies wildly in every court. The venerated Supreme Court has
produced some transparently dishonest junk panned by the vast bulk of
commentators, including a decision which arguably decided the 2000
presidential election.

The expectation that Judge Taylor was going to unveil some comprehensive new
legal picture of these issues -- the type of legal document which, for
instance, 14 different top-level law professors and government lawyers had
to band together to produce without having to also manage a huge caseload --
is quite unrealistic. And, as noted, much of it may very well be the fault
of the poor advocacy of the DoJ, not that anyone attacking Judge Taylor
bothered to find that out first.

(6) While it is hard to dispute criticisms of Judge Taylor's opinion on the
First and Fourth amendment issues, the opinion is perfectly competent, at
times eloquent, on the state secrets issue, the standing issue, and most
importantly, the Youngstown FISA violations. It is the state secrets and
Youngstown/FISA issues which lay at the heart of the overarching political
and legal disputes composing the NSA scandal, and on those issues, the
court's decisions were not only correct, but solidly reasoned as well.

(7) Finally, if Judge Taylor had written the perfect legal opinion -- if she
simply copied the words passed down from whoever is reputed to be the High
Constitutional Scholar to whom we look for elevated legal reasoning -- what
would that have actually changed as a practical matter? Nothing. Those who
think the President has the right to violate FISA would still have attacked
the decision as the mischief of out-of-control, terrorist-friendly,
U.S.-hating liberal subversive judges (see, for instance, their attacks on
Justices Stevens and Kennedy in the wake of Hamdan, or any other ruling the
political results of which dislike), while those who believe the opposite
would have hailed the decision.

Everyone has been debating these legal issues for the last 8 months.
Everyone knows what the issues are, what the arguments are, what the
relevant cases are, etc. Judge Taylor was not going to convince anyone of
anything new even if she unleashed some sterling legal opinion. And no
matter what she said, the Sixth Circuit -- and probably the Supreme Court
after that -- is going to look at all of these issues anew, from scratch,
without regard to what the District Court said about these matters.

Look at any judicial ruling of any significance -- Youngstown, Brown,
Hamdan, Miranda, whatever one's favorite case is. Nobody knows, remembers,
or cares what the District Court even ruled in those cases, let alone the
quality of the reasoning, because it does not matter.

The significance of Judge Taylor's ruling lies in the act itself -- the
re-affirmation of the principle that the President's conduct is subject to
judicial review and is subordinate to the laws enacted by the American
people through their Congress. This administration, while claiming it has
substantial legal authority for its radical executive power theories, has
desperately tried to avoid judicial review of the President's conduct at
every turn --- with the abuse of the "state secrets" doctrine, the Specter
bill, the denial of judicial review to detainees, the refusal to ask the
FISA court for a ruling on the legality of its program.

The significance of Judge Taylor's ruling lay not in the quality of her
judicial opinion (which everyone gets to feel really smart by demeaning),
but instead it is the resounding rejection of the extremist and dangerous
theory that the President, because of the "war" we are fighting, has the
right to operate without constraints of any kind, including those imposed by
the Constitution and Congressional statutes. On that key issue, the court's
analysis was correct and even powerful. But by all means, let's get on with
some more fun, self-glorifying attacks on the lack of scholarly depth of
this single opinion from Judge Taylor. That is really the issue on which the
fate of Republic depends.

UPDATE: The Government's Brief in support of its Motion to Dismiss or
alternatively for Summary Judgment is available on the ACLU site, here.
Marty Lederman has read it (unlike, it appears, those oh-so-thorough, smart
and serious scholars criticizing Judge Taylor's decision), and Lederman
confirms what I argued above (emphasis in original):


What's interesting is that although DOJ alluded to the Article II
argument, it did not quite advance or support in any detail that argument --
or any other merits argument, for that matter -- because the theme of its
brief was that the state secrets privilege makes it impossible to adjudicate
such arguments in court.

The DoJ practically avoided making arguments on the merits of the
constitutional and even statutory claims, opting instead to invoke secrecy
doctrines in lieu of advancing such arguments in any meaningful way. It is
hardly surprising -- and nobody has any ground to complain -- that the court
did not address non-existent arguments or arguments which were made in only
the most cursory manner. "Poor legal reasoning" and lack of scholarly
thoroughness is evident at least as much in the criticisms of Judge Taylor
as it is in the opinion she produced.
"Greg Weber" <e-streetBLOCK@xxxxxxxxxxxxxxxx> wrote in message
news:0001HW.C10C7570000620ECF0386550@xxxxxxxxxxxxxxxxxxxx
On Fri, 18 Aug 2006 22:23:53 -0500, Calvin Jones & the 13th Apostle wrote
(in article <4knei7Fcus1tU1@xxxxxxxxxxxxxx>):

Why do the wingnuts hate the rule of law?

We love it. This single district court judge's decision was almost
immediately stayed, and the decision's on appeal to the Sixth Circuit.
FRAP's alive and well.

It's a weak, poorly written decision. Regardless of the ultimate
resolution, the issues deserve better treatment than they received here.

--Fr. G.
FISA, WI



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