Bad Judges Make Bad Law

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.

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.

I've watched enough Perry Mason to know, that is not good.

Thanks for 'sporkin' off. :-)!

Here's her biography from the Detroit African-American History Project. She was first appointed to the bench by Coleman Young. She also is married to a congressman. Cronyism at it's worst, apparently.

Biography Search Display
Name:
ANNA DIGGS TAYLOR

Year of Birth:
1932
Year of Death:
n/a

Biography:

An attorney and judge, Anna Diggs Taylor was the first African-American woman appointed to a federal judgeship in Michigan and later became the first African-American woman to be named chief federal judge in the Eastern District of Michigan. Taylor has used her positions to advance civil rights throughout the United States.

Born Anna Katherine Johnston in 1932 in Washington, D.C., Taylor grew up in a household in which politics and civil rights were highly valued. Her parents sent her to private school in Massachusetts because they felt she needed a greater challenge than the local schools provided. She graduated in 1950 from Northfield School for Girls in Massachusetts and then enrolled at Barnard College where she earned a B.A. in Economics. She entered Yale University Law School and earned her law degree in 1957. After graduation she could not find a job in a private law firm due to the prejudices against African Americans and women. She found work as a solicitor for the Department of Labor, working under J. Ernest Wilkins, the first African American to hold a sub-cabinet post in the United States government. In 1960 Taylor married United States Representative Charles Diggs, Jr., and she moved to Detroit.

After moving to Detroit, Taylor worked for a year as an assistant county prosecutor in Wayne County. In 1964 she spent the summer in Mississippi as part of the National Lawyers Guild civil rights program to provide legal services for civil rights activists, arriving on the day that three civil rights workers disappeared in Philadelphia, Mississippi. When Taylor and other attorneys went to the sheriff's office to ask about the disappearance they were surrounded by a crowd of angry whites, who hurled racial epithets at Taylor and her companions. In 1966 Taylor became assistant United States attorney for the Eastern District of Michigan.

After the birth of her daughter, she worked managing her husband's Detroit office until their divorce in 1971. From 1970 to 1975 she was a partner in the law firm Zwerdling, Mauer, Diggs, and Papp. In 1976 she married S. Martin Taylor. Taylor became active in politics, helping Coleman Young in his 1973 campaign and Jimmy Carter in his 1976 victory. After Young's election, Taylor was named special counsel to the City of Detroit and then in 1975 accepted the full time position as assistant corporation counsel for the city. She successfully defended new city policies that established affirmative action hiring practices and outlawed discrimination in two private yacht clubs located on city-owned Belle Isle. Taylor became the first African-American women named to a Michigan federal court on November 15, 1979, when she was sworn in as a federal judge to the U.S. District Court for the Eastren District of Michigan. In 1997 she became the first African-American woman to be named chief judge of Eastern District of the United States District Court. In 1998 Taylor stepped down as chief judge in order to reduce her workload. She continued to serve as a senior federal judge.

Webmaster:
DAAHP@wayne.edu

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.