I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Wednesday, August 23, 2006

Ann Althouse - NYT legal expert on a case she knows nothing about

(updated below)

This Op-Ed in today's New York Times by Ann Althouse purports to criticize Judge Taylor's ruling in the NSA case on the ground that Taylor "didn’t bother to come up with the verbiage that normally cushions us" from suspicions that a court is motivated by the result, not the law, and because what Althouse calls "immensely difficult matters" surrounding Bush's violations of FISA were "disposed of in short sections that jump from assorted quotations of old cases to conclusory assertions of illegality."

The fact that something is "immensely difficult" for Ann Althouse to figure out does not mean that it is, in fact, "immensely difficult." Most actual legal experts, across the ideological spectrum, have found nothing challenging -- let alone "immensely difficult" -- about concluding that the President of the United States does not have the power to break the law by engaging in the very conduct which the law criminalizes.

Althouse thinks that the President's claim that neither courts nor Congress can interfere in his conduct with regard to national security "is a serious argument, and judges need to take it seriously," but she never says why that argument is "serious" or what the court failed to consider in rejecting the administration's theories of presidential omnipotence. Althouse apparently thinks that repeating the words "serious" and "difficult" enough times will bestow on her little platitudes the scholarly weight which her analysis so plainly, so embarrassingly lacks.

Ironically, although Althouse devotes the bulk of her Op-Ed to criticizing Judge Taylor for failing to consider important arguments, or failing to consider them "seriously" enough, it is Althouse's Op-Ed that is completely bereft of reasoning. It's basically one long list of political cliches and banal ad hominems more suitable to a Rush Limbaugh opening monologue than some "serious" legal analysis of a judicial opinion. Althouse -- who yesterday revealingly accused Judge Taylor of being "barely literate" and said Taylor's decision "nauseated" her -- wastes the Op-Ed space of the NYT to mock Taylor for referring to Earl Warren as "Justice Warren," rather than "Chief Justice Warren"; predictably accuses Taylor of being an "activist" judge; and meaninglessly claims that Taylor failed to "suppress [her] personal and political willfulness." None of this is accompanied by any substantive rationale; it's just one trite, empty, pro-Bush bumper sticker judge insult after the next.

That Althouse's "critique" of Judge Taylor's opinion is so free of substance is not merely ironic but also entirely unsurprising. As I documented yesterday (based on Althouse's forced admissions), she actually had no idea what even happened in this case until Monday night. The Bush Department of Justice made the decision not to address the merits and substance of the ACLU's constitutional claims despite being ordered to do so by the court -- twice. Althouse has spent the last week attacking the court for its failure to address arguments that the DoJ never raised -- and now makes the same inane, patently misinformed criticisms of Taylor in The New York Times.

But it is nothing short of humiliating that Althouse had no idea that any of that happened in this case. She hasn't followed this case at all. She has no idea what took place. Just as is the case for her good friend and colleague, Orin Kerr, whom she cites for support in her Op-Ed, Althouse is criticizing Judge Taylor for an "incomplete" opinion because Althouse is entirely ignorant of the fact that the DoJ chose not to advance any substantive arguments on the merits of these claims. She quotes Kerr to accuse Taylor of issuing an "incomplete" opinion, but Kerr -- like Althouse -- simply did not know that the DoJ made no substantive arguments that went to the merits of this lawsuit (a failure which arose from the fact that the DoJ, reflecting the Bush administration's belief that it is above judicial review, argued only that the court had no right to decide these issues).

Although these critical events in this lawsuit were all public and reported by major newspapers, Althouse learned of them for the first time -- as she reluctantly admitted -- by reading the Comment section at Volokh on Monday, after which she had to correct a completely false factual claim she made about the case. Her ignorance about these matters was not concerning some obscure legalisitc point. Rather, she was just blissfully and inexcusably unaware of the most important fact necessary for understanding Judge Taylor's decision -- that the DoJ failed to raise any of the issues which she and her good friend, Professor Kerr, find so "immensely difficult."

Georgetown Law Professor Marty Lederman -- who took the time to read the DoJ's Brief (.pdf) -- explained that the DoJ "did not quite advance or support in any detail that argument -- or any other merits argument, for that matter." Therefore, criticizing Judge Taylor for failing to address those "immensely difficult" arguments which were never raised in this case reveals a complete misunderstanding of this lawsuit and the legal principles governing Judge Taylor's decision.

Althouse did not follow this case and had no idea what happened in it. She formed her views about the court's ruling and then proceeded to express them loudly and publicly without bothering to do the smallest amount of work which would be necessary for forming a responsible opinion -- including even reviewing what the DoJ argued here or finding out what happened previously in this case (she even aggressively criticized the court's opinion while admitting that she only had time to "skim it"). Even after that, it is clear that she just read the opinion and then spat up some trite political slogans attacking the court, exhibiting precisely the intellectual sloth and undisciplined approach of which she thinks she is qualified to accuse Judge Taylor.

But this gaping lack of relevant knowledge did not stop Althouse from writing an Op-Ed, nor stop The New York Times from publishing it, in which she pretended to be some sort of legal expert on the issues decided by Judge Taylor. The fact that someone can be paraded around as an expert on a lawsuit about which they know next to nothing is as good of an explanation as any for the sorry, distortive state of our political discourse.

UPDATE: The inanities in Althouse's Op-Ed are far too numerous for there to be any hope of capturing even the majority of them in a single post, but this comment points to one too extreme to be overlooked. Althouse's accusation of "judicial activism" here is particularly incoherent given that Judge Taylor was upholding and enforcing a law (called FISA) that was overwhelmingly enacted by the American people through their Congress. Enforcing a democratically enacted law -- as Judge Taylor did -- is the opposite of what "judicial activism" describes (i.e., where a judge ignores the "will of the people" by undemocratically striking down laws they enact).

UPDATE II: As Scott Lemieux notes in a comment: "what's even funnier about her newly minted interest in formalistic reasoning and 'judicial activism' is that she wrote an article defending that epitome of formalism and judicial restraint Bush v. Gore." Armando previously dissected Althouse's defense of Bush v. Gore, as part of which she said the decision "works best as a rich and revealing case study of the human mind in action." Someone who (a) criticizes a judicial ruling while knowing virtually nothing about the case and (b) defends Bush v. Gore is probably the very last person who ought to be sermonizing about the need for serious, scholarly, judicially restrained reasoning.

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