Centerfield

Hat tip Tully?

In trying to take a more conciliatory tone because I've so aggravated Pat recently, let me say that I agree with the problem as described. If a judge is going to construct, at least use good materials. :-)

And further, when a trend is discerned, that's when you do need to worry about unbalancing the powers of the branches. Where I've defended constructivism, I've tried to make it clear that I believe it's an unavoidable and necessary tool, but one which should be historically rare. And the only way to keep it rare is to raise a stank about it. The more blithely judges resort to it, the higher the stank needed.

As usual, I see a conundrum where others see a much clearer line being crossed, to our detriment. (and that comment speaks to the general issue, not this specific instance, I'm not defending Taylor's decision. ) Ideally, we'd all like to think that the executive and legislative branches would address this ongoing issue, and better define the bounds of the powers of the executive and legislative branches. Yet historically, the views of the partisans changes every time the oval office changes hands.

So it seems unlikely that the people whose job it is to better define things are not going to do it. But that's not necessarily a bad thing. Detailed definitions of who has what power could prove to be undesirable hinderances. I liken it to the notion of tolerance in engineering. If the fit of moving parts is too loose, the machine functions poorly and inefficiently, and if the fit is too tight, the parts will grind, and the machine will seize up and be unable to do its job. So maybe the longstanding nature of this argument about executive powers suggests that the wiggle room helps the government do what it needs to.

That's a reasonable argument for the judicial branch to stay out of it. There's also a good arguments for the judicial branch to get involved. Supposing there is an abuse of power that seems singular, and presuming that the branches that are supposed to fix it seem congenitally disinclined to fix it, that's a plausible rationale for a judge to think he or she has been thrown into the breach.

BUT that should always be an EXTRAORDINARY CIRCUMSTANCE, and a judge should be aware of it, and the judge should rise to the occasion with clarity, humanity, and brilliance, to name just a few. If a judge can't look back upon precedents and outline some sort of clear overarching principle, the bulb should go off in the judges head that they don't have a good answer, and so they should demur.

When I've read some past landmark decisions, I was often deeply moved by them. They include things like, say, a quote that's a sentence or two long which everyone can understand, and outlines something that sounds right enough and fair enough that many or most of us can accept it. The absence of such a thing suggests that the reasoning was indeed extracted from a rectal cavity to defend a predetermined result. If you're a judge and you are going to step out, do so brilliantly or don't do it at all. The only reason any sort of rare judicial stepping out should ever be accepted is to help provide missing clarity. Confusing, inscrutable, decisions are no good for anyone. I don't like that any more than Pat or Simon, if I may be forgiven for calling them out here.

Dear Friend--

For another very well researched and well written piece, please read Unclaimed Territory (http://glenngreenwald.blogspot.com/2006/08/ann-althouse-nyt-legal-expert-on-case.html#links)...it has another perspective that you may appreciate. Glenn has done some extensive blogging on the entire case, and with his legal background, it's quite interesting.

In summary, the Judge was correct in her decision because the WH legal counsel CHOOSE not to contest any of areas in which they were indisputed. It's a bit more interesting than that though.

-Pain

Althouse's basic point is correct, although I think she made the mistake of writing this piece in a way that really lfet her open to the kind of roasting she got at Volokh - I followed the point she was making because she's been talking about this on her blog and in podcasts and vlogs since the decision came out, but her NYT piece really didn't adequately make the point that I think she was trying to get across in a way that stood up freestanding from following her blog.

Regarding LoP's comment, I don't really think Glen Greenwald has anything to offer to this discussion except further sound and fury that anyone would demand something as silly as actual legal reasoning as to why the NSA program is illegal. Because let's face it, it just is legal, and that's all that matters; what matters is that finally someone has stood up to Bush and said so. Fortunately, I doubt "it's illegal because George W. Bush is evil" will be an argument which carries much weight at the Sixth Circuit.

"Dear Friend"?? Now even blogs are reduced to cranking out comment spam?