Monday, August 21, 2006


The Rules of Law

Ann Althouse notes a windy defense by Law Professor Larry Tribe of Judge Taylor’s terrorist surveillance decision, which I noted here.

Tribe is a celebrity jurist if ever there was one, on par with Court TV and all those defense attorney talking heads that show up on cable. You know the type, the ones that make a living offering commentary on the latest celebrity trial or sensationalist murder case. (Let’s face it, the real process of law is as deadly boring as sitting through televised town council meetings. Hence the need for professional TV attorneys and judges. “I am a real judge, but I don’t bother practicing law because a play a lawyer on TV!”

Here’s as much of Tribe’s defense as I’m willing to indulge (emphasis mine):

When a presidential program that wouldn't have been exposed at all but for leaks that the administration is trying not just to plug but to prosecute is manifestly lawless in the most fundamental respects; when that program challenges constitutional as well as statutory constraints on executive authority; when it is promulgated by an executive branch in the hands of characters who care little about the rule of law, much less about legal nuance; and when the lawmakers who are posturing as the program's critics have in fact engineered a statutory "fix" that amounts to little more than a whitewash in the offing -- when all these things are true, it's not costless to harp on the details of a basically correct legal denunciation of that program to the point of ridiculing the motives and capacities of the judge delivering the blow.

Gad, I thought I did the run on sentence thing to death. I’ve met my match.

Note the way Tribe describes the Bush Administration as characters who don’t care one whit about laws, and used that as excuse for why Judge Taylor didn’t need to exercise her authority as, well, a judge and not a blogger or other talking head. And hey, what do I know? Not as much as the more vocal critics of Judge Taylor’s opinion, who have pointed out the following.

Judge Taylor neglected to establish standing -- the legal term that refers to whether a specific plaintive has any personal justification for objecting to a law, program, behavior or event that. In this case, that meant, someone who’s communications had been monitored or intercepted. The idea is to prevent “just anybody” from bringing suits. They have to have been harmed or affected in some way.

Judge Taylor ignored important precedents. She ignored arguments in support of the program. She dismissed without discussion well-known tensions within the Constitution, between the Constitution and legislation. She refused to consider any special circumstances involved in terrorism, the fight against it, changes in technology, or any particular compelling reasons to think beyond what she obviously considers so obvious that it doesn’t require evidence or argument.

Talk about your naked assertions of power.

(Via Instapundit.)

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