Carter-appointed liberal judicial activist ignores precedent
Federal Judge Anna Diggs Taylor of Detroit ruled earlier today that the NSA's international terrorist surveillance program is unconstitutional. I haven't yet seen the text of the opinion, and therefore can't comment on it in detail. However, as we've written repeatedly (for example, here), the federal courts have held on a number of occasions that the President has the constitutional power under Article II to order warrantless surveillance for national security purposes. The Second, Third, Fourth, Fifth and Ninth Circuits have so held, as has the special FISA Court of Review. And those cases dealt with domestic warrantless intercepts, as opposed to the international communications that fall within the NSA program.Is it more than a year off? It seems like the DOJ would argue for an expedited hearing. It's times like now I recall the (urban legend) words of Andrew Jackson: "(Chief Justice) John Marshall has made his decision; now let him enforce it!"
One of the serious weaknesses of our federal judicial system is that in many cases, plaintiffs can forum-shop for a favorable district or judge. Here, the ACLU, the plaintiff in the case, could have brought the case anywhere in the United States. The ACLU naturally avoided the circuits that had already upheld warrantless surveillance as an executive power; the Sixth Circuit, which encompasses Michigan, has not ruled on the issue, to my knowledge. The ACLU was able to get its case before Judge Taylor, a 1979 Jimmy Carter appointee who was described by the Detroit Free Press as "a liberal with Democratic roots."
It is interesting, and possibly significant, that Judge Taylor was involved in a judge-shopping controversy in connection with her effort to preserve race discrimination at the University of Michigan, where her husband is a regent:Chief Judge Anna Diggs Taylor of the federal District Court in Detroit tried to take the suit against the law school away from Judge Bernard Freedman, who had been assigned it through a blind draw--and who was suspected of being skeptical about affirmative action--and consolidate it with a similar suit against the university's undergraduate admissions practice, which Judge Patrick Duggan was hearing. The chief judge dropped that effort after the judge hearing the law school complaint went public with a blistering opinion objecting to what he termed "the highly irregular" effort of the chief judge. Judge Duggan ruled in favor of the undergraduate racial preferences, while Judge Freedman ruled against the law school preferences.Consistent with unanimous precedent in the Federal Courts of Appeal, I would expect the 6th Circuit to reverse Judge Taylor's ruling and uphold the NSA program. That's a year or more off, however, and in the meantime the ACLU and the Democrats got the headlines they wanted from one of their own.
Look, I don't have a problem with the executive getting a warrant, OK? What I have a BIG problem with is that this case has been decided in numerous precedents, all of which had the same ruling that was the exact opposite of this ruling. I have a BIG problem with the ACLU going court-shopping and procuring a sympathetic judge. A judge can't simply ignore the law and prior court rulings simply because she gets her bloomers in a bunch over our leaders listening to terrorist suspects overseas communicating with Americans. Well, she may try, but she won't get away with it.
Ace makes a great observation:
The have-it-both-ways Democrats have been claiming for months they're gung-ho on national security, and don't object to the NSA program in principle, they merely wish the President to "comply with the law" and seek Congressional authorization for the program.Yeah, the Dems were for Congressional authorization of surveillance...before they weren't. I guess today's ruling, plus the inaction of Democrats, are what recent visitor Canucklehead had in mind when he said (warning...put drinks down before reading this! I'm not responsible for beverage-coated computer monitors! In 3...2...1...): Liberals are better at security than conservatives!
Well, Congress has had months to pass such leglislation.
Where is it?
On the heels of the SkyBomb busts, ably assisted by American signals intelligence (i.e., NSA intercepts), this judge has ruled that American efforts in this regard must stop immediately.
I don't question her timing. I question her sanity.