The background of a federal district court declaring President Bush’s national security eavesdropping unconstitutional was a conservative’s fantasy. The judge, a former Democratic politician and civil rights activist, wrote what read more like a political manifesto than a judicial opinion. What’s more, she was responsible for contributions to an organization that was a plaintiff in the case she decided.
District Judge Anna Diggs Taylor’s decision has been stayed and probably will be reversed by the 6th Circuit Court of Appeals. Nevertheless, she was playing more than a cameo role on the stage of history. For this opinion ever to have been issued by an activist judge in Detroit, in the opinion of several legal scholars and distinguished lawyers whom I contacted, shows the judiciary in a state of chaos.
Taylor ended up with the case because of forum-shopping: filing multiple law suits in quest of a favorable venue. With the executive and legislative branches in Republican hands, liberals count on activists in the federal judiciary such as Judge Taylor. That explains why normally censorious legal scholars tend to excuse her shoddy judicial opinion and ethical trespassing.
Jimmy Carter as president never named a Supreme Court justice, but he filled plenty of district judgeships with Democratic loyalists. In 1979, he nominated Anna Diggs Taylor, a politician and civil rights worker well known in Michigan Democratic circles as the woman who until 1971 ran the congressional office of her then husband, Rep. Charles Diggs (who was censured by the House and went to prison for taking kickbacks from congressional employees).
Taylor as a judge and, after 1997, chief judge in the Detroit district has been predictably liberal, and recently was criticized for trying to switch an affirmative action case to a friendly judge. Her moment of fame came Aug. 17 at age 73 when she ordered an immediate halt to National Security Agency (NSA) monitoring of suspect international phone calls. Her decision was higher on emotion than logic, including this unfathomable peroration: "There are no hereditary kings in America."
This posed a dilemma for the liberal establishment. Could they excuse this ridiculous opinion to justify a desired outcome? Harvard’s Laurence Tribe, the left’s pre-eminent constitutional expert, reacted politically. With a presumably straight face, he praised Taylor for a "splendid job" of dealing with a "lawless" administration.
Other liberal scholars were more candid. Yale’s Jack Balkin said Taylor’s opinion "has so many holes in it" that "the plaintiffs will have to relitigate the entire matter" on appeal. Still, Balkin rejoiced over the decision, reducing the case to a political question where judicial reasoning was less important.
An additional embarrassment for liberal scholars was a discovery by Judicial Watch, the conservative watchdog organization, that Taylor was on ethical thin ice. She is listed as secretary and trustee of the Community Foundation for Southeastern Michigan, deciding its financial grants. They included $125,000 to the American Civil Liberties Union (ACLU), which was one of the plaintiffs in the NSA suit.
That might seem an obvious conflict of interest, but the canons of conduct for federal judges are unclear as to whether Taylor was in violation. Liberal scholars, quick to claim conflict of interest by Justice Antonin Scalia on far less evidence, gave Taylor the benefit of the doubt. Her ACLU ties, said New York University’s Stephen Gillers, would not "raise reasonable questions about her partiality on the issue of warrantless wiretapping." Gillers conceded, however, that she should have disclosed the connection "because it avoids suspicion later."
Why did the Justice Department not try to disqualify Taylor? Administration sources told me the president’s lawyers were unaware of her ACLU connection. But career lawyers at Justice may have just been avoiding trouble with the federal bench.
The overriding question is how Anna Diggs Taylor was able to seize a constitutional issue. In The Wall Street Journal this week, Circuit Judge Richard A. Posner noted delegating a national security issue "to a randomly selected member of the federal judiciary’s corps of almost 700 district judges." The Detroit judgment contributed to Posner’s conclusion that "we do not have a coherent political dimension to our efforts to combat terrorism." Judge Taylor’s farce made that clear.