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The NSA Opinion: Criticism of the Criticism

08/24/2006 11:29 am ET | Updated May 25, 2011

There has been quite a lot of academic commentary (read: blog entries by law professors) about the relative shortcomings of the opinion from Judge Anna Diggs Taylor holding the NSA Surveillance Program illegal and unconstitutional. I haven't seen the point in joining the fray; after all, people can read our briefs if they want to know what we think the final opinion should look like. Shortly afterwards came a backlash of "criticism of the criticism," as one blogger put it.

In prominent cases which aren't fact-intensive, like this one, the details of the district court opinions are rarely that important. Most of the legal reasoning in such a case will always be revisited and rewritten by the Court of Appeals in any event. The district court needs to come to the correct conclusions, and, in a case where the plaintiffs are suffering irreparable harm, to reach those conclusions and issue a ruling quickly. How the opinion gets to its final destination is not as important. The appeals courts are there to dot the Is and cross the Ts, and that's easier for them to do, as they usually have more time to review the issues, which will have been refined (and usually simplified) by the prior proceedings. (All of which goes a long way towards explaining why lawyers rarely cite district court opinions.) When I worked for a judge, we clerks used to regard the district court opinion as the best starting point to get oriented to a new case, and we typically read them before the parties' briefs, so the lower court's opinions are important in that sense - they are, as Eugene Volokh says, briefs for the appellate courts. In any event, there's plenty of commentary on the opinion and its merits and shortcomings out there (here's a defense from Lawrence Tribe).

Personal attacks on the judge followed in short order. (She was a civil rights activist in the 60s! She was appointed by Carter! And.... she's black!) More disturbing than the fact of this sort of criticism is the prominence the mainstream media has given it. I can't really put it any better than Marty Lederman did at the excellent Balkinization site:

does the New York Times really think that it's relevant -- worthy of paragraph six emphasis -- that Judge Taylor supported Jimmy Carter and worked in the civil rights movement, or that she is black? Has it included similar disclaimers whenever, say, Judges Silberman (of In re Sealed Case fame) or Luttig have issued opinions supporting the Bush Administration? Imagine: "Recall, however, that Judge Silberman, who is a white man, has long been hostile to all things liberal, and, in particular, when FISA was being considered 28 years ago, he was the leading opponent, offering constitutional arguments against it that were not to be heard again until he gratuitously slipped them into dicta in an opinion he wrote as a federal judge almost three decades later." Whenever the first President Bush did anything considered conservative, did the New York Times remind its readers that he was white and that he had opposed the 1964 Civil Rights Act?

All this set the stage for yesterday's story - or non-story as the case may be - that Judge Taylor sits on the board of trustees of an organization that gave a grant to the ACLU of Michigan (one of the plaintiffs in the NSA warrantless surveillance case before her) for work on family law and lesbian/gay/bisexual/transgender rights issues. Should she have disqualified ("recused") herself from sitting on the case?

Recusal is a funny business. Judges must remove themselves when they have a direct personal interest in a case - when they own stock in a company that might be affected by their rulings, for instance. The current federal recusal statute goes even farther and asks for recusal whenever there is enough of a perceived conflict of interest to create the appearance of unfairness (in any case "in which [the judge's] impartiality might reasonably be questioned."). But district court judges are typically assigned randomly to cases, and allowing parties too-easy grounds to force recusal of their randomly-assigned judges might end up being a tool for judge-shopping and thus diminish the perceived fairness of the court system. (This is particularly significant at the Supreme Court where the political/policy inclinations of the justices are well known, have a great impact on the outcome of the sorts of close cases that the court typically hears, and where one recusal can mean the difference between a win or a loss.)

NYU law professor Stephen Gillers, one of the country's leading legal ethics experts (and our expert in our NSA case), summed it up nicely in the Times: "The question is whether [Judge Taylor's] impartiality might reasonably be questioned, and the fact that she sits on the board of a group that gives money to the plaintiff for an otherwise unrelated endeavor would not in my mind raise reasonable questions about her partiality on the issue of warrantless wiretapping." It's also worth noting that, in my (limited) experience, the system is usually set up to catch most relevant, recusal-worthy conflicts automatically. Judges submit lists of parties to which they have some relationship - their mutual fund company, their brothers' employer, charities they donate to, whatever - and the clerk's office of the court makes sure they don't get assigned to any such cases. Judges don't often sit around thinking about these issues unless someone else points the problem out to them.

It's interesting that this issue of recusal should come up in the NSA litigation. One of the most significant precedents for the standing issues in this case - Laird v. Tatum - involved a Vietnam-era challenge to an army intelligence program of infiltrating public protests and similar events attended by certain activists. Did the activists have standing to challenge the program, despite the fact that the army had not put the information gathered to any illegal use, based on their fear (the "chilling effect") of what the army might do with the intelligence in the future?

The district court said no in 1970. The court of appeals reversed in 1971, and said the plaintiffs should have standing. The issue went to the Supreme Court in 1972. During the time it took for the case to reach the Supremes, a young Nixon administration lawyer named William Rehnquist was nominated to a vacant spot on the high court. Rehnquist had testified twice in March, 1971 about the intelligence gathering program before a Senate subcommittee and had been head of the Office of Legal Counsel in 1969 when it participated in policy decisions about whether the army should continue to carry out such surveillance (his possible involvement was never made known to the plaintiffs in Laird).

The plaintiffs assumed Rehnquist would recuse himself without being asked. One of their lawyers, Frank Askin, tells a pretty good story about the case. He was working on the appeal to the Supreme Court with help from Senator Sam Ervin, who had been one of the Senators questioning Rehnquist during the 1971 hearings (Ervin was later a Fourth Circuit judge). Ervin told Askin they needn't ask Rehnquist to recuse himself, that he'd do it without being asked. As Askin tells the story, they walked into the Supreme Court together on the morning of the argument, and saw all nine justices sitting on the bench - including Rehnquist! Askin turned to Ervin, who said, in his deep southern accent, "Aww, Frank, don't worry - he's just here to listen."

He wasn't. It turned out Rehnquist cast the deciding vote in the 5-to-4 decision against the plaintiffs, dismissing the case. (Had Rehnquist recused himself, the Court would have split 4-to-4 and the Court of Appeals decision would have been sustained.) Askin moved afterwards for Rehnquist to recuse himself, but Rehnquist again declined to do so. (In response to the incident, Congress modified the federal recusal statute into its current form in 1974.)

Today, the government claims that the opinion Rehnquist joined in Laird means our suit must be dismissed. Funny how these things work out.

August 24, 2006
(Thanks to Celia Choy for impeccable research assistance)