Sunday, August 27, 2006

What happens when the dog catches the car?

Judge Anna Diggs Taylor illustrates why Democrats cannot be trusted with political power in time of war.

Judge Taylor, who is the chief judge of the federal district court in Detroit, ruled Aug. 17 that it is unconstitutional for the National Security Agency to listen in, without warrants, on telephone conversations between terror suspects abroad and people in the United States.
Her ruling was praised by Senate Democratic leader Harry Reid, House Democratic leader Nancy Pelosi and other prominent Democrats.

"With a careful, thoroughly grounded opinion, one judge in Michigan has done what 535 members of Congress have so abysmally failed to do," The New York Times gushed in an editorial Aug. 18.

But the Times was pretty much alone in its opinion that Judge Taylor's decision was "careful" and "thoroughly grounded."

In its editorial the same day, The Washington Post said Judge Diggs' decision "is neither careful nor scholarly, and is hard-hitting only in the sense that a bludgeon is hard-hitting."

"There is poor reasoning, and then there is head-spinningly, jaw droppingly poor reasoning," said The Washington Times.

By Aug. 20, The New York Times was backtracking. "Even legal experts who agreed with a federal judge's conclusion on Thursday that a National Security Agency surveillance program is unlawful were distancing themselves from the decision's reasoning and rhetoric yesterday," wrote the Times' Adam Liptak in a news story.

On Wednesday, the Times published an op-ed by University of Wisconsin law professor Ann Althouse which described Judge Taylor as "a law unto herself."

"For those who approve the outcome, the judge's opinion is counterproductive," Ms. Althouse said. "It will be harder to defend upon appeal than a more careful decision. It suggests there are no good legal arguments against the program, just petulance and outrage and antipathy toward President Bush."

Activist judges like Ms. Taylor who attempt to impose their political views by fiat pose a significant danger to the constitutional separation of powers, Ms. Althouse said.

"Let's consider the irony of emphasizing the importance of holding one branch of the federal government, the executive, to the strict limits of the rule of law while sitting in another branch of the federal government, the judiciary, and blithely ignoring your own obligations," she said.

The Times' discomfort increased when Judicial Watch discovered that Judge Taylor served on the board of a foundation which gave $125,000 to the Michigan ACLU, the lead plaintiff in the case, and did not disclose this apparent conflict of interest.

"Judge Taylor's role at a grant-making foundation whose list of beneficiaries includes groups that regularly litigate in the courts is ... disquieting," the Times acknowledged in an editorial Thursday.

This wasn't Judge Taylor's first brush with judicial impropriety. In 1998, she tried to take from Judge Bernard Friedman (who'd been awarded it on the customary blind draw), the case concerning affirmative action policies at the University of Michigan's law school. She gave up the attempt when Judge Friedman complained loudly, in public.

Even if Judge Taylor had been awarded the case in the blind draw, it would have been improper for her to hear it, because her husband is a regent at the University of Michigan.

Judge Taylor was appointed to the federal bench by Jimmy Carter in 1979. Her cavalier attitude toward conflict of interest rules, and her tendency to use her position to impose by fiat her political views regardless of what the law says are, alas, not rare among Carter and Clinton appointees to the federal bench.

Judge Taylor's excesses are not likely, in this instance, to harm the republic. Indeed, her atrocious reasoning behind a decision shaky on the merits increases the high likelihood it will be overturned on appeal.

Of more significance is what the uncritical embrace by Democrats of Judge Taylor's decision portends for Democrats. We suffered on Sept. 11, 2001, the most devastating attack ever on our soil. The program Judge Taylor wants to terminate, however, can help prevent the kinds of attacks that Britain thwarted this month.

President Bush has made mistakes in his conduct of the war on terror. But thanks in part to Judge Taylor's ruling, voters this November will be asking themselves whether they would rather be governed by a political party that thinks Islamic terror is the greatest threat to Americans, or by a political party which is more concerned about Wal-Mart.

I don't think Democrats will like their answer.