Posted on 08/23/2006 1:52:12 PM PDT by Congressman Billybob
Last week US District Judge Anna Diggs Taylor, in Detroit, Michigan, ruled that the National Security Agency’s overseas communications intercept program was unconstitutional. This is tied for the worst decision I’ve ever read, in 36 years as a member of the bar, both federal and state.
Dozens of pundits have already written about aspects of her decision that are egregiously wrong. Even the august New York Times, which opposes the NSA program and favors Judge Taylor’s result, still has called her opinion “badly reasoned.”
It’s important that lawyers, legal writers, and experienced laymen be able to recognize a thoroughly incompetent judicial decision when one is handed down from any court. The worst of the worst, to my experience, share a single, fundamental flaw.
In the Federalist, No. 78, Alexander Hamilton wrote for himself and James Madison and John Jay about the limits of federal judicial authority. “It may truly be said to have neither FORCE nor WILL, but merely judgment.....” [Emphasis in the original.] The Constitution gave federal judges lifetime tenure and guaranteed salaries to prevent the sort of command influence exercised by the King of England, forcing judges to decide cases as he wanted. Yet Hamilton’s statement means that judges should use their independence to decide the particular case before them, not to impose their personal will on the case and the parties.
Any judge who imposes his/her personal opinions in the outcome of any case, acts outside his/her constitutional authority, and in violation of his/her oath of office. Is that conclusion too harsh? Let’s review.
Others have ably taken apart Judge Taylor’s opinion in the NSA case. So, I add a second example, the decision it tied as worst of all time. In 1992, Judge Stanley Sporkin of the US District Court in D.C. decided the case of John Boehner (and more than 150 other members of Congress) challenging the latest congressional pay raise as unconstitutional under the newly ratified 27th Amendment. That was written by Congressman James Madison as part of the Bill of Rights, but not finally ratified until 203 years later.
In refusing to apply this part of the Bill of Rights to Congress’ latest cost-of-living raise, Judge Sporkin made the same three basic errors as Judge Taylor in the NSA case. First, he ignored the law – an amendment drafted by James Madison and now finally ratified. Second, he ignored the facts, ruling that a COLA increase in pay is not really a raise.
But the most basic error by Judge Sporkin was to impose his personal whims on the case. And he left clues to his bias in the opinion itself, as did Judge Taylor. Judge Sporkin actually used as “evidence” his personal observations from decades before, when he saw a Congressman take a bribe. Even laymen reading this know that no judge has a right to invent evidence out of thin air, without testimony or cross-examination.
Judge Sporkin’s decision was so bad that the Court of Appeals made no attempt to correct his errors. Instead, it simply ignored his decision, and wrote a brand-new one to replace it. In deference to his seniority, it didn’t say it was throwing his decision away, but just did it.
Normally, when a case has been butchered on the facts, it will be remanded to the trial court for review and a correct decision. The Court of Appeals did not return this case to Judge Sporkin, probably recognizing he would butcher the case, again.
I expect Judge Taylor’s decision to meet the same fate. It is so bad, in so many ways, that I do not expect the Court of Appeals even to attempt to correct its errors. Instead, I expect them to throw her decision out, though again they may not announce that, in deference to her seniority.
There is one final wrinkle in the Taylor decision. The blogosphere has found out that she kept the case and ruled on it, even though she was Trustee and Secretary on a charity board which had donated $45,000 over the last two years to the ACLU of Michigan. And that was one of the plaintiffs in the case before her.
This is such a grave and obvious breach of judicial ethics that Judge Taylor should be disciplined, in addition to being stripped off this or any other case involving the ACLU. That should happen, but probably will not.
Lawyers, and laymen who deal with legal subjects, should recognize the tell-tale signs of judicial incompetence in any case at any level. They are: Avoiding the facts, because they are inconvenient. Avoiding the law including US Supreme Court precedents, because they lead in the wrong direction. And injecting personal opinions into what should be a legal opinion or decision.
When all three of these errors occur in a single case, you can be sure it’s an example of a judge violating his/her oath of office, by imposing personal views on the outcome. Do not trust press accounts of decisions, since reporters frequently miss such errors, or share the judge’s bias and don’t report them. To see such bias at work, you must read the original opinions.
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About the Author: John Armor is a lawyer specializing in constitutional law, who may again be a candidate for Congress in the 11th District of North Carolina.
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I can't argue with you there.
Is it gonna happen? You and I know it won't.
Might it happen if they policed their own in a blatant case such as this? Maybe a slim chance.
However, the Chief Judge of any District Court -- and Taylor is, or was, the Chief Judge in the Eastern District of Michigan -- can override the random assignment and give a particular case to a particular judge.
If Taylor jumped ranks and assigned this case to herself so she could assist her buddies in the ACLU, she should not only be disciplined and removed from the case, she should be removed from the Bench. Either her fellow judges can act, or Congress can impeach her.
John / Billybob
Not retire, fired now
The ACLU did choose this judge.
Yes, it is very interesting. Thank you for your thoughtful, well written editorial...Now, I can stop writing further acts to "Anna Diggs Taylor, the Musical." Well, at least stop for the moment--at least until the 6th Circuit weighs in...
That SHOULD be the way to do it, but it won't happen because the "Citizen-Employers" are mostly sheeple and could care less.
Thank you, kind sir.
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