Judge Anna Diggs Taylor: News & Views

July 2007

Setback for the ACLU

By The Editors

7-9-07 -- In a welcome decision, a divided panel of the Sixth Circuit U.S. Court of Appeals on Friday reversed a Detroit federal judge’s ruling from last summer which purported to invalidate the Bush administration’s Terrorist Surveillance Program. The TSP, which is no longer in effect, involved eavesdropping by the National Security Agency, without court warrants, on communications into and out of the United States by suspected members of al Qaeda. . . . Notwithstanding relentless efforts by administration critics to mischaracterize the program as “domestic spying,” it proved to be popular with the public, which understood that for terrorist operatives inside our country to take directions from overseas requires communication. . . . Despite their criticism of President Bush’s alleged lawlessness, Democrats made no serious effort to end the program by cutting off funding. Most said they believed such communications should be monitored; their sole objection, they claimed, was that they wanted it done within the “rule of law” — by which they meant they wanted it done only with judicial blessing under a 1978 statute Congress had enacted. They rejected the notion that the president, as commander-in-chief, maintained the inherent authority to order the surveillance as a way to protect the nation from foreign attack during wartime. But all wartime presidents have exercised this authority (once the technology made this sort of surveillance possible), and all courts that have considered the issue have concluded the chief executive indeed has this constitutional power.

Federal appeals court reverses Detroit judge's ruling on Bush spying program

Gregg Krupa / The Detroit News

7-7-07 -- A federal appeals court today reversed a lower court decision in Detroit that a spying program operated by the Bush Administration was unconstitutional. . . . The U.S. Circuit Court of Appeals in Cincinnati ruled 2-1 that the plaintiffs in the case, a group of several dozen academics, activists and journalists, could not demonstrate they had been harmed by the surveillance and therefore cannot sue the government. . . . The court ordered the case back to Detroit and ordered U.S. District Judge Anna Diggs Taylor to dismiss it.

To read the 65-page appellate court decision, log on to: www.ca6.uscourts.gov/opinions.pdf/07a0253p-06.pdf

Widespread Media Coverage for Discovery
re: Wiretapping Judge

 From the Desk of Judicial Watch President Tom Fitton:

Last week, Judicial Watch discovered that Anna Diggs Taylor, the federal judge who ruled the government’s anti-terrorist wiretapping program unconstitutional, had a potential conflict of interest that she failed to disclose.  Obviously, this story has struck a nerve.  Numerous national media outlets, including USA Today, the Associated Press, The Washington Post, and Fox News, covered Judicial Watch’s discovery. (Even the ultra-liberal New York Times wrote an editorial critical of Judge Diggs Taylor.)  Today, more than a week later, the press is still talking about it.   

Just to review the details… On August 21, Judicial Watch discovered that Judge Diggs Taylor has indirect financial ties to a plaintiff in the wiretapping lawsuit, creating a potential conflict of interest.  Judge Diggs Taylor serves on the Board of Trustees and is the Secretary for the Community Foundation of South Eastern Michigan (CFSEM), a non-profit organization which donated at least $45,000 to the ACLU of Michigan, a plaintiff in the wiretapping lawsuit.

According to syndicated columnist Bob Novak, even the White House, which obviously had a lot at stake in this lawsuit, was surprised by this potential conflict of interest.  “Administration sources told me the president's lawyers were unaware of her ACLU connection,” Novak reported on Monday.  Well, they’re aware of it now.

Should Judge Diggs Taylor have recused herself from the case over her financial link to the ACLU?  Perhaps.  Should she have disclosed the relationship?  Absolutely!  Unfortunately, she didn’t, so many Americans now question whether or not Judge Diggs Taylor was truly committed to impartiality in the ACLU lawsuit.

I am hopeful that all of this public attention will prompt a serious investigation of Judge Diggs Taylor.  At the very least, though, this intense scrutiny should force her to be more careful about disclosing her links to litigants that come before her court. 

9-1-06

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From the Desk of Judicial Watch President Tom Fitton

This week, Judicial Watch discovered that Judge Anna Diggs Taylor, who ruled the NSA wiretapping warrantless program unconstitutional last week, has ties to a plaintiff in the case, creating a potential conflict of interest. Judge Diggs Taylor serves on the Board of Trustees and is the Secretary for the Community Foundation of South Eastern Michigan (CFSEM), a non-profit organization which donated $45,000 to the ACLU of Michigan, a plaintiff in the wiretapping lawsuit.

This discovery led to a barrage of media coverage from The New York Times, USA Today, The Washington Post, and the Associated Press, among other national publications.  On Wednesday night, I was interviewed on the Fox News Channel’s (FNC) “O’Reilly Factor.”  Tomorrow morning, at 8:15 a.m., I’ll be visiting with FNC’s “Fox and Friends.”  Even the liberal New York Times published an editorial critical of the judge’s behavior as a result.

This is not the first time Judge Diggs Taylor’s judgment has been questioned.  In an affirmative action case involving the University of Michigan School of Law, Judge Diggs Taylor reportedly attempted to use her position as then-Chief Judge of the federal District Court to reassign the case from Judge Bernard Freeman, who had been assigned the case by a blind draw, to a judge more “sympathetic” to affirmative action policies.  (Judge Freeman questioned Judge Diggs Taylor’s “highly irregular” behavior and the attempt to reassign the case was dropped.)

Currently, Judge Diggs Taylor is presiding over a civil trial in which former Arab Community Center for Social and Economic Services (ACCESS) employee, Bushra Alawie, is suing ACCESS for a variety of claims, including discrimination.  CFSEM has donated $180,000 to ACCESS yet, despite her connection to the organization, Judge Diggs Taylor has not recused herself.  The trial is set for February 2007.

This series of questionable actions on the part of Judge Diggs Taylor definitely raises red flags.  When a judge fails to disclose a potential conflict of interest, it calls to question whether or not they are truly committed to impartiality.  Given the enormous public interest in the NSA wiretapping lawsuit, Judge Diggs Taylor should have disclosed to the public her link to the ACLU.  Further serious investigation is warranted. -- 8/21/06

Judge Anna Diggs Taylor: Bad Judges Make Bad Law

Written by John Armor

Last week U.S. District Judge Anna Diggs Taylor, in Detroit, Michigan, ruled that the National Security Agency’s overseas communications intercept program was unconstitutional.  This is tied for the worst decision I’ve ever read, in 36 years as a member of the bar, both federal and state. . . . Dozens of pundits have already written about aspects of her decision that are egregiously wrong.  Even the august New York Times, which opposes the NSA program and favors Judge Taylor’s result, still has called her opinion “badly reasoned.” . . . It’s important that lawyers, legal writers, and experienced laymen be able to recognize a thoroughly incompetent judicial decision when one is handed down from any court.  The worst of the worst, to my experience, share a single, fundamental flaw. . . . In the Federalist, No. 78, Alexander Hamilton wrote for himself and James Madison and John Jay about the limits of federal judicial authority.  “It may truly be said to have neither FORCE nor WILL, but merely judgment.....” [Emphasis in the original.] The Constitution gave federal judges lifetime tenure and guaranteed salaries to prevent the sort of command influence exercised by the King of England, forcing judges to decide cases as he wanted.  Yet Hamilton’s statement means that judges should use their independence to decide the particular case before them, not to impose their personal will on the case and the parties.

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Any judge who imposes his/her personal opinions in the outcome of any case, acts outside his/her constitutional authority, and in violation of his/her oath of office.  Is that conclusion too harsh?  Let’s review. . . . The blogosphere has found out that she kept the case and ruled on it, even though she was trustee and secretary on a charity board which had donated $45,000 over the last two years to the ACLU of Michigan.  And that was one of the plaintiffs in the case before her. . . . This is such a grave and obvious breach of judicial ethics that Judge Taylor should be disciplined, in addition to being stripped off this or any other case involving the ACLU.  That should happen, but probably will not. . . . Lawyers, and laymen who deal with legal subjects, should recognize the tell-tale signs of judicial incompetence in any case at any level.  They are: Avoiding the facts, because they are inconvenient.  Avoiding the law including U.S. Supreme Court precedents, because they lead in the wrong direction.  And injecting personal opinions into what should be a legal opinion or decision. . . . When all three of these errors occur in a single case, you can be sure it’s an example of a judge violating his/her oath of office, by imposing personal views on the outcome.  Do not trust press accounts of decisions, since reporters frequently miss such errors, or share the judge’s bias and don’t report them.  To see such bias at work, you must read the original opinions.

About the Writer: John Armor practiced in the US Supreme Court over 30 years, filing briefs in 18 cases. John may be reached at John_Armor@aya.yale.edu .

Updated News & Views

November 2006

JW Brief: 
NSA Wiretapping Case Ruling “Hasty and Injudicious”

From the Desk of Judicial Watch President Tom Fitton

11-02-06 -- Last week, Judicial Watch filed an amicus curiae brief with the U.S. Court of Appeals for the Sixth Circuit in the National Security Agency wiretapping case, stating that Judge Anna Diggs Taylor’s ruling was “hasty and injudicious” (ACLU et. al v. National Security Agency).  As you may recall, the government initiated the “Terrorist Surveillance Program” to monitor conversations of individuals suspected of being involved with Al Qaeda.  Judge Diggs Taylor ruled the program unconstitutional on August 16.  Here’s an excerpt from our brief, filed on October 24:

 “[The District Court] attempted to decide…very important constitutional questions without the benefit of anything approaching a well-developed factual record, conflated the plantiffs’ alleged First and Fourth Amendment injuries, and disregarded well-established precedent and ordinary rules of procedure.  The result was not only the hasty and injudicious entry of a permanent injunction against an ongoing foreign intelligence gathering operation during a time of war, but also the patently flawed entry of summary judgment against the government.”

Judicial Watch’s legal argument focused on the fact that none of the plaintiffs in the case had “standing” to bring the lawsuit.  In other words, they could not prove that their conversations were ever actually monitored by the government.  The “injuries” they claimed, therefore, were merely speculative and could not properly be considered by the court.

The court stretched to find standing so it could have jurisdiction to rule against the program.  This smacks of results-oriented jurisprudence and is one of the reasons the lower court’s decision was so roundly criticized. 

One would think, given the enormous importance of this lawsuit, and the amount of attention it received, that Judge Diggs Taylor would have been more careful. This is too serious and too important an issue to have been handled so irresponsibly. Obviously, we believe the appellate court should vacate the decision.

As I’m sure you remember, in August, Judicial Watch discovered a potential conflict of interest on the part of Judge Anna Diggs Taylor related to this very lawsuit. The judge serves as a Secretary and Trustee for a foundation that donated funds to the ACLU of Michigan, a plaintiff in the case.  Judicial Watch discovered the potential conflict of interest after reviewing Judge Diggs Taylor’s financial disclosure statements, leading to a barrage of press coverage. . . . Next up, the Sixth Circuit hears oral argument sometime soon and then a ruling.  Stay tuned…

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Click here to read a copy of JW's Amicus Brief on the NSA Wiretapping Case.

October 2006

Judicial Watch Brief: District Court Ruling in NSA Wiretapping Case 'Hasty and Injudicious'

Judicial Watch Calls on U.S. Court of Appeals to Vacate Ruling

10-27-06 -- U.S. Newswire/ -- Judicial Watch, the conservative government watchdog group, announced today that it has filed an amicus brief with the U.S. Court of Appeals for the Sixth Circuit in the National Security Agency wiretapping case (ACLU, et al., v. National Security Agency, et al., Appeal No. 06-2095/06-2140.) Judicial Watch, which previously uncovered a potential conflict of interest on the part of presiding Judge Anna Diggs Taylor, is calling upon the appellate court to vacate the District Court ruling. According to Judicial Watch's court filing, the ruling "overstepped the limits of judicial authority." . . . " The District Court -- attempted to decide...very important constitutional questions without the benefit of anything approaching a well-developed factual record, conflated the plantiffs' alleged First and Fourth Amendment injuries, and disregarded well-established precedent and ordinary rules of procedure," Judicial Watch argued in its amicus brief filed on October 24. "The result was not only the hasty and injudicious entry of a permanent injunction against an ongoing foreign intelligence gathering operation during a time of war, but also the patently flawed entry of summary judgment against the government. The District Court's ruling must, respectfully, be vacated." . . . To read a copy of Judicial Watch's Amicus Brief, please visit Judicial Watch's Internet site, http://www.judicialwatch.org.

September 2006

Winning the War Requires Winning on Judges

by Jan LaRue, Esq.

If Osama bin Laden watches the Republicans’ efforts to win the war over judges and equates it with their commitment to win the real war, he’d swap his cave for a condo in Kabul or Karachi and start broadcasting live from his sundeck. . . . But for our magnificent military, he’d be a regular on CNN. . . . Now that he thinks he can use his cell phone without fear of being overheard by someone charged with protecting us from annihilation, bin Laden probably rang up a local florist to wire roses to U.S. District Judge Anna Diggs Taylor, a Jimmy Carter appointee. . . . Taylor struck down the National Security Agency’s warrantless wiretapping program on August 16. Taylor says it violates rights to free speech and privacy. The ACLU filed the lawsuit and forum shopped on behalf of journalists, scholars and lawyers who say “the program has made it difficult for them to do their jobs.” Hopefully, the U.S. Court of Appeals for the Sixth Circuit will reverse Taylor’s wild excursion into activism land.

August 2006

The wisdom of wiretaps

COMMENTARY By James Jay Carafano

Lawyers joke that if a prosecutor gets the right grand jury, it's possible to indict a ham sandwich. A recent ruling by a U.S. District Court judge suggests a corollary: A lawyer who shops around long enough can find a judge willing to issue a ruling that makes as much sense as indicting a sandwich. . . . After all, there are 91 federal districts and 646 district court judges. All are appointed for life. Odds are, you can locate at least one willing to put judicial activism ahead of the Constitution and our national security. . . . How else can we explain the recent ruling by Judge Anna Diggs Taylor that declares unconstitutional a National Security Agency program that intercepts suspected terrorist communications? Even many administration critics who oppose the government's surveillance program agree Judge Taylor's ruling is weak on precedent and reasoning and unlikely to withstand scrutiny on appeal. -- 8/30/06

Judicial chaos
By Robert D. Novak

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. -- 8/28/06

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NO: Judge Taylor's ruling sabotages the security of the U.S.

Robert F. Turner McClatchy-Tribune News Service

A recurring thought while wading through Judge Anna Diggs Taylor's truly appalling opinion in ACLU v. NSA was the old Latin proverb, Ignorantia juris non excusat -- "ignorance of the law is no excuse." Judge Taylor either chose to ignore or is actually oblivious to a number of important legal precedents that are incompatible with her decision -- a decision that is certain to be reversed on appeal. . . . While the case raises several important issues, the most important is whether the Fourth Amendment's "unreasonable searches and seizures" clause prohibits the president from directing the National Security Agency during time of congressionally authorized war from monitoring communications between known or suspected enemy operatives abroad and people inside the United States without a judicial warrant. . . . Judge Taylor asserts that the Fourth Amendment "requires prior warrants for any reasonable search, based upon prior-existing probable cause." . . . This ignores a long line of Supreme Court decisions holding, as the court explained in the 2002 case of Board of Education v. Earls, that a search "unsupported by probable cause" may be "reasonable" when "special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable." -- 8/28/06

A Law Unto Herself

By Ann Althouse , Op-Ed Contributor

TO end her opinion in American Civil Liberties Union v. National Security Agency — the case that enjoins President Bush’s warrantless surveillance program — Judge Anna Diggs Taylor quoted Earl Warren (referring to him as “Justice Warren,” not “Chief Justice Warren,” as if she wanted to spotlight her carelessness): “It would indeed be ironic if, in the name of national defense, we would sanction the subversion of ... those liberties ... which makes the defense of the nation worthwhile.” . . . As long as we’re appreciating irony, let’s consider the irony of emphasizing the importance of holding one branch of the federal government, the executive, to the strict limits of the rule of law while sitting in another branch of the federal government, the judiciary, and blithely ignoring your own obligations. . . . 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.

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Judge Taylor confuses the constitution

By Paul Greenberg - Tribune Media Services, Inc.

Who is Anna Diggs Taylor and what does she have against national security?

The answer to the first question is: a U.S. district judge in Detroit. The answer to the second is as mysterious as the decision she handed down Thursday. . . . In her 44-page ruling, Judge Taylor ordered the National Security Agency to stop monitoring international calls to and from this country, aka "domestic spying" in New York Times style. . . . The judge found the practice not just illegal but unconstitutional. And also un-American in just about every crass, rhetorical way she could. The crux of her opinion reads like an entry in a high-school declamation contest rather than a reasoned piece of jurisprudence. . . . It's as if Her Honor had mounted her trusty steed and ridden off in all directions — legal, constitutional, philosophical, and mainly oratorical. . . . There may indeed be a legitimate argument against some aspects of the National Security Agency's wiretaps. But this ruling doesn't make it. It's not so much an argument as a series of wild swings:

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Judge's Strange Ruling

By Thomas Bray

If anybody needed a reason to think twice about delivering the Senate — and the White House — to the Democrats, they need only take a close look at two of the more liberal judges on the federal district court in Detroit. . . . First up, of course, is Anna Diggs Taylor, the Jimmy Carter appointee who issued a hyperventilating decision last week declaring the Bush wiretaps of foreign telephone calls unconstitutional. The legal reasoning in the decision — or rather the lack of it — has embarrassed even some of the liberal commentariat. The decision is on hold pending an appeal by the government. . . . Next up may be Arthur Tarnow, appointed to the federal bench in 1998 by Bill Clinton, who appears to be taking seriously an effort by a band of radical black activists seeking to block a referendum that would bar preferential state hiring and admissions. Public polls suggest the referendum might be defeated if the vote were held today, but the activists don't want to take any chances. They claim that up to 136,000 black voters were duped by petition gatherers into believing that the measure wouldn't affect current practices — though each petition they signed carried the exact wording of the measure at the top of the page.

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Amateur Hour?
A judge’s first-year failing-grade opinion.
By Bryan Cunningham

The Honorable Anna Diggs-Taylor probably means well. The lone judge in American history to order a president to halt in wartime a foreign-intelligence-collection program that has undoubtedly saved lives probably sympathizes with the journalists, and others, who are suing to stop the Terrorist Surveillance Program (TSP) in which NSA intercepts foreign-U.S. terrorist communications. She probably feels in her heart the program is wrong, and undoubtedly hears the footsteps of the federal judicial panel moving towards taking this case away from her and consolidating it with others. . . . We can sympathize with her motives, and even share some of her gut feelings of uneasiness about the program. But we cannot accept the stunningly amateurish piece of, I hesitate even to call it legal work, by which she purports to make our government go deaf and dumb to those would murder us en masse. Her bosses on the Court of Appeals and/or the United States Supreme Court will not accept it. . . . Much will be said about this opinion in the coming days. I’ll start with this: I wouldn’t accept this utterly unsupported, constitutionally and logically bankrupt collection of musings from a first-year law student, much less a new lawyer at my firm. Why not? Herewith, a start at a very long list of what’s wrong with Judge Taylor’s opinion. . . . Process Fouls. When you sue your plumber over a disputed $50 invoice, before deciding who wins, the judge is required to jump through some minor constitutional hoops like actually hearing evidence (as opposed to press reports), holding hearings, and reading and understanding the briefs filed and the laws at issue. Judge Taylor appears to have taken none of these rudimentary steps before issuing one of the most sweeping wartime legal rulings in our nation’s history. Experts on both sides agree it is impossible to decide the crucial Fourth and First Amendment issues in this case without detailed, factual knowledge of precisely what the government is doing (see, e.g., the brief I filed with the Washington Legal Foundation, at www.morgancunningham.net, and the excellent testimony of David Kris, at http://www.fas.org/irp/congress/2006_hr/index.html). Judge Taylor apparently needs no more facts than what she reads in the papers.

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A Judicial Misfire

The first federal court opinion on warrantless NSA surveillance is full of sound and fury.

EDITORIAL – Washington Post

THE NATION would benefit from a serious, scholarly and hard-hitting judicial examination of the National Security Agency's program of warrantless surveillance. The program exists on ever-more uncertain legal ground; it is at least in considerable tension with federal law and the Bill of Rights. Careful judicial scrutiny could serve both to hold the administration accountable and to provide firmer legal footing for such surveillance as may be necessary for national security. . . . Unfortunately, the decision yesterday by a federal district court in Detroit, striking down the NSA's program, is neither careful nor scholarly, and it is hard-hitting only in the sense that a bludgeon is hard-hitting. The angry rhetoric of U.S. District Judge Anna Diggs Taylor will no doubt grab headlines. But as a piece of judicial work -- that is, as a guide to what the law requires and how it either restrains or permits the NSA's program -- her opinion will not be helpful. . . . Judge Taylor's opinion is certainly long on throat-clearing sound bites. "There are no hereditary Kings in America and no powers not created by the Constitution," she thunders. She declares that "the public interest is clear, in this matter. It is the upholding of our Constitution." And she insists that Mr. Bush has "undisputedly" violated the First and Fourth Amendments, the constitutional separation of powers, and federal surveillance law.

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President Taylor
A federal judge rewrites the Constitution on war powers.

In our current era of polarized politics, it was probably inevitable that some judge somewhere would strike down the National Security Agency's warrantless wiretaps as unconstitutional. The temptations to be hailed as Civil Libertarian of the Year are just too great. . . . So we suppose a kind of congratulations are due to federal Judge Anna Diggs Taylor, who won her 10 minutes of fame yesterday for declaring that President Bush had taken upon himself "the inherent power to violate not only the laws of the Congress but the First and Fourth Amendments of the Constitution, itself." Oh, and by the way, the Jimmy Carter appointee also avers that "there are no hereditary Kings in America." In case you hadn't heard. . . The 44-page decision, which concludes by issuing a permanent injunction against the wiretapping program, will doubtless occasion much rejoicing among the "imperial Presidency" crowd. That may have been part of her point, as, early in the decision, Judge Taylor refers with apparent derision to "the war on terror of this Administration."

We can at least be grateful that President Taylor's judgment won't be the last on the matter. The Justice Department immediately announced it will appeal and the injunction has been stayed for the moment. But her decision is all the more noteworthy for coming on the heels of the surveillance-driven roll up of the terrorist plot in Britain to blow up U.S.-bound airliners. In this environment, monitoring the communications of our enemies is neither a luxury nor some sinister plot to chill domestic dissent. It is a matter of life and death. . . . So let's set aside the judge's Star Chamber rhetoric and try to examine her argument, such as it is. Take the Fourth Amendment first. The "unreasonable search and seizure" and warrant requirements of that amendment have their roots in the 18th-century abuses of the British crown. Those abuses involved the search and arrest of the King's political opponents under general and often secret warrants.

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Federal Court Rules Protecting America is Unconstitutional

by John C. A. Bambenek

The ACLU has convinced a federal judge that monitoring overseas communications of terrorists is against the constitution. Despite the fact the preamble lists defending the nation as an acceptable federal government function, the ACLU and US District Judge Anna Diggs Taylor said that the risk “innocent” communications could be intercepted far outweighed the risk of Al Qaeda attacking the United States. Despite programs such as ECHELON, CARNIVORE, and others that existed happily (albeit controversially) under the Clinton Administration, the possibility that George Bush might actually defend the country is a threat the Constitution cannot bear. . . . Despite the evidence, the media still calls the case a matter of “warrantless wiretapping” despite the fact that the clear intention is to monitor international calls. This ongoing deception is an attempt to create hysteria that the US is becoming a “police state” and that the treats are from Republicans, not terrorists. This is the same political quarter that brings you the idea (despite all evidence to the contrary) that George Bush and not Al Qaeda is behind 9/11. . . . The judge in this case, an appointee of Jimmy Carter, doesn’t seem to understand the difference between overseas surveillance and domestic surveillance. Will the CIA start needing warrant the next time the spy on a terrorist overseas?

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Ruling on domestic surveillance refocuses attention on trial court opinions' impact on appellate proceedings

Affirmance, Reversal and the NSA Wiretap Case

Howard J. Bashman, Special to Law.com

A ruling from a Detroit federal judge last week holding unconstitutional President Bush's domestic wiretapping program has caused many supporters of and objectors to the legality of that program to agree on one thing: U.S. District Judge Anna Diggs Taylor's opinion was analytically weak and, in the absence of sound legal analysis, too full of rhetorical flourishes. . . . Now that the ruling is on appeal to the 6th U.S. Circuit Court of Appeals in Cincinnati, attention is being focused on the extent to which a solid trial court opinion influences the odds of affirmance or reversal on appeal. This question, of course, presents itself not only in cases of overarching importance to national security and individual rights, but in nearly every appeal that is taken from a trial court to an appellate court. . . . Generally speaking, the materials pertinent to deciding an appeal -- the parties' appellate briefs, the trial court's opinion and order, and other relevant portions of the trial court record -- are delivered all at once to the appellate judges assigned to decide the appeal. In my experience, most appellate judges will turn first to the trial court's opinion explaining the ruling that is the subject of the appeal before reading the parties' briefs seeking to reverse or affirm that ruling.

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Experts Fault Reasoning in Surveillance Decision

By Adam Liptak

Even legal experts who agreed with a federal judge’s conclusion on Thursday that a National Security Agency surveillance program is unlawful were distancing themselves from the decision’s reasoning and rhetoric yesterday. . . . They said the opinion overlooked important precedents, failed to engage the government’s major arguments, used circular reasoning, substituted passion for analysis and did not even offer the best reasons for its own conclusions. . . . Discomfort with the quality of the decision is almost universal, said Howard J. Bashman, a Pennsylvania lawyer whose Web log provides comprehensive and nonpartisan reports on legal developments. . . . “It does appear,” Mr. Bashman said, “that folks on all sides of the spectrum, both those who support it and those who oppose it, say the decision is not strongly grounded in legal authority.”

Anna Diggs Taylor

Michigan Supreme Court Historical Society

In 1979, Anna Diggs Taylor became the first black woman judge to be appointed to the United States District Court for the Eastern District of Michigan. Nineteen years later, she became the first black woman Chief Judge for that circuit as well.¹

Taylor had great difficulty obtaining her first job as an attorney for the Office of Solicitor for the U.S. Department of Labor, despite graduating form the prestigious Yale Law School in 1957. Very few opportunities existed for a black woman in law at this time. In 1961, Taylor relocated from the Washington D.C. area to Detroit, Michigan. Here she was involved in both public and private practice until her appointment to the U.S. District Court for the Eastern District of Michigan, on which she continues to serve. Taylor’s position has enabled her to open doors for other women and minorities to pursue and achieve their dreams. She strives for gender and racial equality in the law and currently serves on the Joint Steering Committee of the Gender and Racial Ethnic Fairness Task Forces for the Sixth Circuit.

Her success did not come easy. Taylor faced discrimination on account of her race and her sex throughout her legal career. Yet, she persevered in her uphill struggle against prejudice. Anna Diggs Taylor set a standard of excellence for the abilities and performance of women in law.

1 Interview: Anna Diggs Taylor, 2003.

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