The obvious thing wrong with Anna Diggs-Taylor’s decision

I knew without reading it that Anna Diggs-Taylor’s decision striking down the surveillance program would be a poorly written, poorly reasoned, legally and factually unsupported bit of garbage. Did I know this because I’m intimately familiar with the legal issues involved? No. Because I know all (or even any) of the facts? No. Because I’ve been following developments in this case with incredible care and knew we had to win, and that a loss could only be because of fallacious reasoning? No. I knew that the decision was a bad bit of work the moment I read that Diggs-Taylor was a Carter appointee and a die-hard liberal.

I started practicing law when I was still a die-hard (or, at least, unthinking) liberal. I voted the Democratic ticket with fervor, spouted all the PC lines, and knew that conservatives were evil. Didn’t all intelligent, thinking, moral people feel the same way?

A funny thing happened, though, as I went before judges over and over and over again. Without exception — without a single exception — I could count on the fact that the liberals in the Court would rule from the gut, and the few conservatives on the Court would rule on the law. It worked out great if the liberal judge’s gut feelings coincided with my client’s interests, but even then I felt cheated by the outcome. I didn’t win because I was the better lawyer or because facts and law supported my position. Instead, I won because my client’s situation happened to coincide with the judge’s political orientation.

More often than not, though, I lost to these liberal judges when I did defense work.  When I represented people and organizations that couldn’t be classified as downtroddgen, I lost cases to judges who said, “I don’t care what the law is; I think there’s something here.” I lost a memorable case, when the law as written completely supported my banking client’s position, because the judge wrote an opinion misquoting that statute so as to thrust a million dollars into the hands of an illegal immigrant who fraudulently signed a bank document. And on and on. I didn’t always lose before these judges on political grounds, but I always lost on non-legal grounds, and that drove me absolutely crazy. I’m willing to lose fair; I can’t stand losing unfair.

And then there were the conservative judges. The ones I laughed at who were mere political hacks, appointed by a friendly Republican governor. Funnily enough, though, while I laughed at their appointments and their politics, I never laughed at their decisions. Whether I won or lost, I could always read through the decision without getting confused, follow the Court’s reasoning, accept the law cited, and either joyously celebrate an honest victory or grudgingly admit an honest defeat.

So, as I said, the moment I read of Diggs-Taylor’s political affiliation, I knew that her decision, whether the ultimate outcome was correct or incorrect, would have been a piece of specious and dishonest reasoning.

By the way, if you want to get past my biases and really understand what went wrong, you could do worse than Bryan Cunnngham’s detailed legal and factual analysis about the decision. And lest you think these attacks on the decision are sour grapes, those on the Left who haven’t completely slipped free of their moorings aren’t that thrilled either. It’s no fun to win by cheating — it’s an unearned victory — and with the decision already being appealed, it means that the decision is infinitely more vulnerable to being reversed on appeal.

Talking to Technorati: Anna Diggs-Taylor, NSA, Judges