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Jewish World Review
August 28, 2006
/ 4 Elul, 5766
Politics over justice
It's the summer of 2006. But U.S. District Judge Anna Diggs Taylor may have already served up a keystone issue of the 2008 presidential election.
For three decades, liberals have warned about the consequences for the judiciary should Republicans win the White House.
"If GOP candidate X is successful," this trope goes, "a woman's right to choose will be irretrievably endangered."
The underlying threat in this Democratic scare tactic is that Republican judges will make abortion illegal.
Never mind that judges can't make abortion illegal. In the most extreme instance, the Supreme Court might overturn Roe vs. Wade taking the abortion debate out of the federal courtroom and putting it back into the political process.
Yet somehow, the "right to choose" has survived the appointment of judges by Presidents Ford, Reagan, Bush and Bush II. Roe vs. Wade is still, without question, the law of the land. And even the two latest appointments to the high court Chief Justice John Roberts and Associate Justice Samuel Alito have testified that it is "settled as precedent."
There's a real question, however, whether the nation can survive the appointment of more judges like Taylor.
"Three years after she campaigned for Jimmy Carter's presidential bid," the Detroit Free Press notes in a recent glowing profile, "Carter rewarded Taylor with a lifetime appointment to U.S. District Court in Detroit."
The odds are good that the appellate process will overturn Taylor's ruling last week that the Bush administration's program to eavesdrop on communications between individuals in the United States and suspected foreign terrorists is unconstitutional. And for the moment, it will have no practical effect. Enforcement of Taylor's decision will remain in suspense until, at the earliest, a Sept. 7 hearing on whether to grant the government's request for a stay.
But that shouldn't obscure the frightening aspects of her 44-page ruling.
There is her extension of constitutional rights to terror suspects in other countries. There is her abdication of a judicial tradition giving the chief executive wide latitude in defending the nation during time of conflict.
There is her assertion, as a matter of fact, that the most controversial issues of the case are self-evidently settled. With scant evidence, she claims President Bush has "undisputedly violated the Fourth (Amendment) in failing to produce judicial orders as required by FISA. And accordingly has violated the First Amendment rights of the plaintiffs as well."
Bobby Chesney, an associate professor at Wake Forest University School of Law and the editor of the American Bar Association Standing Committee on Law and National Security's National Security Law Report, told the Washington Post, "Regardless of what your position is on the merits of the issue, there's no question that it's a poorly reasoned decision."
The most disturbing part of Taylor's broadside is her blatant employment of partisanship in place of legal reasoning. "There are no hereditary kings in America," she writes, echoing a staple of left-wing, anti-Bush propaganda.
And, most tellingly, she condemns the "War on Terror of this administration." No, your honor. It is the war on terror of this country and the civilized world, thrust upon us by homicidal extremists for whom the finer points of Western legal theory and individual rights are as meaningless as the lives they routinely snuff out.
The tragedy here is that there is a real constitutional issue to sort out. How will Americans reconcile their cherished civil liberties with the threat of modern terrorism? And specifically in this case, what limits can be imposed on executive branch intelligence-gathering as opposed to law-enforcement activities once Congress grants the president the authority to use military force?
Taylor might have made a valuable contribution to this ongoing legal debate. Instead, she put partisan interest above national interest to render a decision that reveals the dangers of allowing more judges like her to reach the federal bench.
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JWR contributor Jonathan Gurwitz, a columnist for the San Antonio Express-News, is a co-founder and twice served as Director General of the Future Leaders of the Alliance program at NATO Headquarters in Brussels, Belgium. In 1986 he was placed on the Foreign Service Register of the U.S. State Department.Comment by clicking here.
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