Laurence Tribe is a hater!

So says no less a legal scholar than Death Squad John in a post entitled Let’s not confuse the masses with legal analysis. You’re right DSJ, when we could confuse them with your special brand of ad hominem attacks! In line with Spot’s new policy, there will be no link to this Power Line post from August 20^th. In the post, Professor Laurence Tribe was criticized for criticizing the criticizers of Judge Taylor opinion on the NSA warrantless surveillance program. Got that?

This was actually a post from the Deacon (at least that’s what they used to call him), but DSJ couldn’t resist an update:

A lot of years have gone by since I knew Larry Tribe as a superbly fair-minded professor. It is inconceivable that, in those days, he would have defended a district court opinion that failed even to acknowledge the fact that it conflicted with every appellate decision on the controlling issue. But the Democratic Party, to which Larry is loyal, has become a party of hate; and hate has superseded any pretense of rational analysis. It is a sad fate for a once-fine intellect.

Anybody who disagrees with DSJ obviously couldn’t have a fine intellect!

This is one of the more colossally absurd statements that Death Squad John has ever made. Quite a claim, Spot knows. But perhaps you need to know a little about how litigation works, boys and girls. Trial courts are in the business of hearing cases in the first instance, finding facts, making a record, and applying the law as it has been currently interpreted by appellate court decisions. Judge Taylor did not acknowledge that her opinion conflicted with every appellate court decision on the controlling issue, as Death Squad John say, for a couple of reasons.

First, it didn’t. Here’s just a teensy bit from the Judge’s opinion:

On appeal, the District of Columbia Circuit reversed the district court with respect to the plaintiffs’ claims regarding the Government’s admitted wiretaps, because there was no reason to “suspend the general rule that the burden is on those seeking an exemption from the Fourth Amendment warrant requirement to show the need for it.” Ellsberg, 709 F.2d at 68.

The Ellsberg is Daniel Ellsberg, and the case being discussed is the Pentagon Papers case. As Spot mentioned before, the burden is on those seeking an exemption to the warrant requirement must establish the grounds for the exemption. In other words, it’s the government’s burden. The government didn’t meet that burden. DSJ wants a rule where the government just says state secrets privilege and then everyone closes up shop and goes home. But as the Judge noted, the government already admitted the facts necessary to make out a prima facie case against the program. The state secret privilege is an evidentiary rule, not a disposer of cases, although it sometimes has that effect. But not always. Obviously!

Second, Judge Taylor didn’t acknowledge that her ruling was contrary to precedent because she didn’t believe it was. That’s why she ruled as she did. To accuse a district court judge of intentionally not following precedent, in other words being lawless as well as wrong, is a serious, and Spotty says reckless, charge made by DSJ, an officer of the court.

There has been criticism of the opinion, by people, including law professors who support the Judge’s conclusion, who say that the case failed to raise this issue or that, and that it didn’t even rely on the strongest arguments against the program. Glenn Greenwald discusses the reason that may explain all the focus on the quality of Judge Taylor’s opinion.

When Death Squad John loses a case, Spot wonders if he always calls the judge lawless?