Irony, Meet Hypocrisy

Aug 23, 2006 06:31

Ann Althouse, a conservative law professor from the University of Wisconsin, had an opinion piece published in the New York Times this morning complaining about Judge Anna Diggs Taylor and her opinion finding Bush's warrantless domestic spying program illegal.

So often, we’ve heard complaints about “activist” judges. They’re suspected of deciding what outcome they want, based on their own personal or ideological preferences, and then writing a legalistic, neutral-sounding opinion to cover up what they’ve done. That carefully composed legal opinion makes it somewhat hard for a judge’s critics to convince people - especially anyone who likes the outcome - that the judge did not decide the case according to an unbiased legal method of analysis.

So perhaps the oddest thing about Judge Taylor’s opinion in the eavesdropping case is that she didn’t bother to come up with the verbiage that normally cushions us from these suspicions. Although the first half of the opinion, dealing with the state secrets doctrine and the first part of the standing doctrine, has the usual detail and structure one expects in a judicial opinion, the remainder of her text dispenses with the formalities....

For those who approve of the outcome , the judge’s opinion is counterproductive. It will be harder to defend upon appeal than a more careful decision. It suggests that there are no good legal arguments against the program, just petulance and outrage and antipathy toward President Bush. It helps those who have been arguing for years about result-oriented, activist judges.

Ms. Althouse concluded her article by writing:

If the judge’s own writing does not support a belief that the rule of law has substance and depth, that law is something apart from political will, the significance of saying the president has gone beyond the limits of the law evaporates.

There’s irony for you.

Irony, meet hypocrisy.

It would seem Ms. Althouse had different ideas when it came to nominating a Supreme Court Justice just a year ago. In her blog, she wrote:

The NYT has a front-page piece today on the new Supreme Court nominee [John Roberts] with a headline that really struck me: "Supreme Court Nominee Stood Out for Conservative Rigor." My instinctive response: Conservatives need to worry about whether this "conservative rigor" -- presumably, some sort of meticulous attention to precise, detailed analysis -- is going to produce the outcomes they like. There's absolutely no reason to think that a rigorous methodological style reliably produces outcomes political conservatives like.

Why would one who laments judicial "activism" advocate worrying about the political outcome of the future legal decisions of nominated judges? As Ms. Althouse wrote in the New York Times, "This system works only if the judges suppress their personal and political willfulness and take on the momentous responsibility to embody the rule of law. They should not reach out for opportunities to make announcements of law, but handle the real cases that have been filed." If that is the case, how can one pick and choose judges based upon predictions of the political outcomes of their decisions?

One person noticed the tension in Ms. Althouse's blog entry, commenting, "I don't know that I'm a conservative, or even a 'conservative', but it would seem that rigor in drawing conclusions from the Constitution, previous decisions, and legal principles would be exactly what 'originalists' and 'strict constructionists' aspire to." Ms. Althouse responded:

But Roberts has not proclaimed himself either an originalist or a strict constructionist, and his rigorouus methodology could very easily lead him to decisions that Bush and his constituents will hate. That doesn't make him wrong. It makes him admirable in my book. But I'm just pointing out something of interest to some folks that I happen to be in a good position to perceive and describe.

It strikes me as a bit disingenuous to express admiration of a judge for the ability to make decisions based on law without regard to political outcome while simultaneously dedicating your time to writing an article warning conservatives to stay away as a result of that very fact.

I don't understand why the New York Times publishes this crap. I understand there has been criticism of the judge's decision in the case (not with respect to the outcome, just the presentation and legal reasoning). I haven't read the opinion myself, so I can't comment on it. But, even assuming there is legitimate criticism (which, knowing how incompetent most judges are, certainly would not surprise me), the New York Times certainly could have found legitimate criticism to publish.

(And, just as an aside, I don't know what Ms. Althouse was smoking to make her possibly think Roberts would not be sufficiently activist on behalf of conservative political causes. From his tenure as Reagan White House counsel to his position on the D.C. Court of Appeals, there was plenty of evidence that he would produce conservative outcomes. One of my favorites may be this quote from a February 15, 1984 White House memorandum on proposed anti-busing legislation: "Congress has authority under [Sec.] 5 [of the Fourteenth Amendment] to enforce the Fourteenth Amendment, and can conclude -- the evidence supports this -- that busing promotes segregation rather than remedying it, by precipitating white flight." That legislation was proposed by none other than white supremacist Strom Thurmond, undoubtedly borne of Senator Thurmond's keen interest in effectively remedying segregation.)
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