In his August 28 nationally syndicated column, Robert D. Novak falsely suggested that U.S. District Court Judge Anna Diggs Taylor's decision striking down the Bush administration's warrantless domestic surveillance program was so off-the-wall that it “has been stayed [or ”suspended" in The Washington Post's version of the column] and probably will be reversed" by a federal appellate court. In fact, Taylor stayed her own order when the parties to the lawsuit -- the American Civil Liberties Union (ACLU) and the federal government -- agreed to ask her to do so. Also, Novak baselessly claimed that “Taylor ended up with the case because of forum-shopping,” a practice that Novak defined as “filing multiple law suits in quest of a favorable venue.” However, the ACLU has filed only one lawsuit challenging the administration's warrantless wiretapping. Additionally, Novak falsely suggested that Yale Law School professor Jack Balkin had criticized the decision's legal reasoning but nevertheless “rejoiced” over it for “political” reasons. In fact, while Balkin did criticize the decision's legal rigor, he did not argue that the program should be halted for “political” reasons, as Novak claimed; rather, Balkin argued that Taylor reached the correct result because “the program is illegal.”

Novak stated that the ruling by Taylor (misidentified as the chief judge of her district by Novak although she stepped down from that position in 1998 and is now a senior judge) “read[s] more like a political manifesto than a judicial opinion” and suggested that, due to its obvious inadequacy, the decision “has been stayed and probably will be reversed” by the U.S. Court of Appeals for the 6th Circuit. In fact, Taylor herself temporarily stayed her decision at the request of both parties to the lawsuit until Taylor rules on the defendant's motion for a longer stay while the Justice Department appeals her ruling.

Novak also wrote that “Taylor ended up with the case because” the ACLU had been “forum-shopping,” or “filing multiple law suits in quest of a favorable venue,” with the supposed aim of being assigned a favorable judge. The ACLU does not appear to have filed any other cases challenging the warrantless eavesdropping program.

Novak mischaracterized as “political” Balkin's reason for agreeing with the decision's result -- that the National Security Agency's warrantless eavesdropping must be terminated -- while criticizing the decision's legal reasoning. Balkin, wrote Novak, “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.” Novak appeared to be referring to Balkin's criticism of Taylor's legal reasoning, which was cited in an August 18 Boston Globe article; however, Balkin did not “reduce[e] the case to a political question where judicial reasoning was less important” than the outcome. Rather, the Globe reported, Balkin wrote that Taylor had “reached the right outcome in finding the program to be illegal” while criticizing her reasoning:

Some critics of the administration's legal theories expressed reservations about Taylor's opinion. Several said, for example, that she made no mention of a June Supreme Court ruling that rejected Bush's contention that his wartime powers allowed him to decide how to try Guantanamo Bay detainees. Citing the court's reasoning would have made her opinion stronger, they said.

Jack Balkin, a constitutional law professor at Yale Law School, wrote on his blog that Taylor reached the right outcome in finding the program to be illegal, but said her arguments were “disappointing” and chided her for not focusing on the recent Supreme Court precedent.

“Because the court's opinion, quite frankly, has so many holes in it, it is ... clear to me that the plaintiffs will have to re-litigate the entire matter before the circuit court, and possibly the Supreme Court,” Balkin wrote. “The reasons that the court below has given are just not good enough. This is just the opening shot in what promises to be a long battle.”

The weblog entry that the Globe article cited illustrated even more clearly that Novak mischaracterized Balkin's views. In it, he wrote that “the court reaches the right result” and suggested that although “the court's analysis is not very strong,” better judicial reasoning would have confirmed the program's illegality:

Although the court reaches the right result -- that the program is illegal, much of the opinion is disappointing, and I would even suggest, a bit confused.

[...]

The court does not seem to deal with the best version of the government's arguments. I think those arguments fail, for reasons that Marty [Lederman, Georgetown University law professor] and I, among others, have elaborated. But I must say that the court's analysis is not very strong.

From Novak's August 28 nationally syndicated column, “Judicial chaos”:

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.