Monday, August 28, 2006

Results Oriented Opinion Writers

Wanted to link to this last week, but never got the chance: Molly Ivins criticizing the media backlash against the recent NSA surveillance decision.

Another bee-you-ti-ful example of the right-wing media getting it all wrong. Here they are having the nerve to mutter in public about “activist judges” because Judge Anna Diggs Taylor has pointed out that spying without a warrant is illegal in this country—so warrantless telephone tapping is illegal in this country.

Improbably enough, the first complaint of many of these soi-disant legal scholars is that Taylor’s decision is not well written. No judicial masterpiece, they sneer. Nevertheless, warrantless spying is illegal. Did it ever occur to these literary critics that Taylor has a lay-down hand? The National Security Agency program is flat unconstitutional, and for those who insist this means Osama bin Laden wins, it’s also ridiculously easy to fix so that it is constitutional.

I suppose the right wing media she criticizes includes independent minded academics like Professor Ann Althouse. I know this is a political puff piece, but even political puff should have some sort of legal grounding when you're talking about the Constitution. Molly Ivins says the critics are wrong, and Judge Anna Diggs Taylor is correct that the NSA program is unconstitutional. That may be, but tell us why. It's not a real debate when you don't answer the criticism of your critics.

Ivins really has it all backwards. Judge Anna Taylor Diggs is being called an activist because her Constitutional reasoning is flawed and the opinion seemed more concerned with the results than the reasoning. Ivins than accuses critics of being results oriented, even though some of the criticism (at least in academic circles) has been sympathetic to the outcome. It may be hard to believe, but there are those of us out here who believe in something other than results-oriented jurisprudence.

Ivins continues with the typical liberal activist jumping jacks,

Money, money, money is the motif of the “New Activist” federal judges, but they have also been busy, busy limiting congressional authority and individual rights. As People for the American Way notes, federal appellate courts—effectively the court of last resort for most Americans—are working on: questioning the constitutionality of the Endangered Species Act, overturning the National Labor Relations Board rulings against anti-union discrimination and other unfair labor practices by employers, allowing the Bush administration to keep secret the records of the Cheney energy task force, and rewriting by court order a state law on First Amendment activity.

We've been through this before. Activism has nothing to do with laws being overturned- It has everything to do with Constitutional interpretations that are based outside of text, structure, and original meaning.

Judge Anna Diggs Taylor's opinion could be considered activist because she interprets the 4th Amendment in a way that can't be reconciled with any traditional method of interpretation. In other words, she seems to be making it up as she goes along in order to get the result she wants. The other sorts of activism mentioned by Ivins? Well once again, it's the reasoning, not the result that makes the activist. Yet again, she's looking in the wrong place.


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