Partisan judge smackdown!

[Yonivore]

The opinion by partisan Democrat judge Anna Diggs Taylor that purported to hold the NSA's terrorist surveillance program uncons utional was a bad joke--an exercise so deficient in legal reasoning that it would fail a first-year law school class. Today, the 6th Circuit Court of Appeals took the first step toward the inevitable repudiation of Taylor's lawless usurpation of power by ordering that the program may remain in force while it considers the government's appeal:

The unanimous ruling from a three-judge panel of the 6th U.S. Circuit Court of Appeals gave little explanation for the decision. In the three-paragraph ruling, judges said that they balanced the likelihood an appeal would succeed, the potential damage to both sides and the public interest.

Think about those criteria for a moment.

What the Court is saying is that in all likelihood, the government's appeal will succeed, and that the public's interest in the program's continuation (i.e., being kept safe from terrorist attacks) outweighs the purported harm to terrorists and their contacts of having their communications monitored. It is extremely unlikely that anything will happen to overturn the Court's initial impression that Taylor's partisan opinion is wrong, and must be corrected.

[George Gervin's Afro]

The opinion by partisan Democrat judge Anna Diggs Taylor that purported to hold the NSA's terrorist surveillance program uncons utional was a bad joke--an exercise so deficient in legal reasoning that it would fail a first-year law school class. Today, the 6th Circuit Court of Appeals took the first step toward the inevitable repudiation of Taylor's lawless usurpation of power by ordering that the program may remain in force while it considers the government's appeal:


Think about those criteria for a moment.

What the Court is saying is that in all likelihood, the government's appeal will succeed, and that the public's interest in the program's continuation (i.e., being kept safe from terrorist attacks) outweighs the purported harm to terrorists and their contacts of having their communications monitored. It is extremely unlikely that anything will happen to overturn the Court's initial impression that Taylor's partisan opinion is wrong, and must be corrected.

Then get a warrant. Why is it so hard for you to comprehend that Yoni? I enjoy hearing Bush and the GOP propoganda machine out there saying dems don't want to allow bush to listen to terrorists phone calls when the issue is about warrants. very simple follow the the law and get the required warrant. What I find absolutley preposterous is when Bush or anyone else says in defense of the program.."we are listening to terrorists phone calls only".. my question would then be if we know they are terrorists why aren't we getting them? I expect Yoni and the fellow GOP apologists will continue to blur the real issue at the heart of the matter especially during the next few weeks.

[Yonivore]

Then get a warrant. Why is it so hard for you to comprehend that Yoni? I enjoy hearing Bush and the GOP propoganda machine out there saying dems don't want to allow bush to listen to terrorists phone calls when the issue is about warrants. very simple follow the the law and get the required warrant.

First of all, you don't need a warrant to listen in to terrorist phone calls that originate overseas -- no matter who they are calling.

What I find absolutley preposterous is when Bush or anyone else says in defense of the program.."we are listening to terrorists phone calls only".. my question would then be if we know they are terrorists why aren't we getting them?

Maybe we are.

I expect Yoni and the fellow GOP apologists will continue to blur the real issue at the heart of the matter especially during the next few weeks.

Well, when the media persists in calling this a Domestic Surveillance Program, someone has to set the record straight.

[George Gervin's Afro]

First of all, you don't need a warrant to listen in to terrorist phone calls that originate overseas -- no matter who they are calling.


Maybe we are.


Well, when the media persists in calling this a Domestic Surveillance Program, someone has to set the record straight.

Well if one of the parties on the phone is an American citizen then the law should be followed correct? You would need to get the warrant even if you have to wait until after the fact? What is so hard about that?

[Yonivore]

Well if one of the parties on the phone is an American citizen then the law should be followed correct? You would need to get the warrant even if you have to wait until after the fact? What is so hard about that?

If one of the parties on the phone is in the United States (because you've yet to demonstrate any American citizen has been surveilled by this program), you only need a warrant if you intend to continue surveilling that phone. If you continue to surveil the overseas phone, you don't need one. If that phone continues to call the phone in the U.S., oh well.

You're not getting it, are you?

[boutons_]

"Maybe we are."

With 100% bad news, the Repugs would certainly be trumpeting any terrorist they caught with unwarranted snooping.

[George Gervin's Afro]

If one of the parties on the phone is in the United States (because you've yet to demonstrate any American citizen has been surveilled by this program), you only need a warrant if you intend to continue surveilling that phone. If you continue to surveil the overseas phone, you don't need one. If that phone continues to call the phone in the U.S., oh well.
You're not getting it, are you?

It's a secret program so how would anyone know? Hence the need for a FREAKING WARRANT! How hard is that to grasp?


Oh well let's just cir vent the law and then paint the opponents of the rpgram as not wanting to protect the country!

[FromWayDowntown]

The opinion by partisan Democrat judge Anna Diggs Taylor that purported to hold the NSA's terrorist surveillance program uncons utional was a bad joke--an exercise so deficient in legal reasoning that it would fail a first-year law school class.

The blogger who originally wrote this is obviously committed to respecting the ins utions of government and the sanc y of the courts.

Of course, had a Republican judge struck down the program with a hastily written opinion, there would be clear aspersions on his or her credibility and intelligence.

After all, this isn't a partisan issue. Not at all.

Today, the 6th Circuit Court of Appeals took the first step toward the inevitable repudiation of Taylor's lawless usurpation of power by ordering that the program may remain in force while it considers the government's appeal

Is your blogger one of the judges on the 6th Circuit. It amazes me that anyone who deals in appeals, other than a judge, could characterize the merits of an appeal with phrases like "inevitable repudiation of Taylor's lawless usurpation of power." I don't recall that Judge Taylor created a case out of wholecloth so that she could decide the merits of the Surveillance Program for herself; my recollection is that someone challenged the program and asked her to decide in the first instance whether the program was cons utional or not. Funny how judges who decide issues lawfully placed before them are now "lawless usurpers" of power.

Oh, that's right; judicial activism depends entirely on whether the judge sides with conservatives or not.

Think about those criteria for a moment.

Thinking, sir.

What the Court is saying is that in all likelihood, the government's appeal will succeed, and that the public's interest in the program's continuation (i.e., being kept safe from terrorist attacks) outweighs the purported harm to terrorists and their contacts of having their communications monitored. It is extremely unlikely that anything will happen to overturn the Court's initial impression that Taylor's partisan opinion is wrong, and must be corrected.

I'd dispute that. But then again what the do I really know about appellate procedure in federal courts?

It's quite possible that the Sixth Circuit will strike down Judge Taylor's decision when it decides the merits of the appeal; it's also quite possible that it won't. Courts rarely signal their feelings about the merits of a case through the disposal of pre-briefing motions. In part, that's because there is no assurance that the judges who decide whether to grant or deny pre-briefing motions will be the judges who actually decide the appeal. For instance, in the 5th Circuit, it's a virtual certainty that the judges who deal with preliminary motions will not be on the panel that hears the arguments and reads the briefs on the merits. I had that happen to me recently with an appeal in that court; the parties filed a flurry of preliminary motions, all of which were decided by a particular panel, and even signed by a particular judge. When the panel assignment was revealed to the parties, none of the judges on the panel that decided the motions was assigned to hear the merits of the appeal. So, I'd be reluctant to derive any conclusions about how the Court views the ultimate merits of the appeal unless there's some evidence: (1) that briefs have already been filed (they have not) and the panel assigned; (2) that the Sixth Circuit has markedly different internal operating procedures than the Fifth; or (3) that all judges on the Sixth Circuit think alike.

Furthermore, the standards for granting relief like the government seeks here are tilted heavily in favor of the movant, even if the movant is the appellant in the court of appeals. The government essentially asked the court to maintain the status quo while the appeal is pending. In cases involving declaratory or injunctive relief, it's hardly remarkable that the appellate court, which hasn't had an opportunity to examine the merits of the arguments made by the parties, permits the status quo to prevail while the appeal is pending. Frankly, it's a safe way out for the court, for any number of reasons. Few who practice in the appellate courts, though, take an order maintaining the status quo as an indication of an "inevitable repudiation" of the trial court's opinion.


I realize that this blogger, er you, want to believe reversal is inevitable. And I'll concede that the judgment might ultimately be reversed for any number of reasons. But I don't think that anyone who is intellectually honest about the appellate process would divine that a result is certain from the disposition of a preliminary motion like this one.

[Yonivore]

The unanimous ruling from a three-judge panel of the 6th U.S. Circuit Court of Appeals gave little explanation for the decision. In the three-paragraph ruling, judges said that they balanced the likelihood an appeal would succeed, the potential damage to both sides and the public interest.

I'm thinking they saw no merit to Judge Taylor's ruling. It's a smackdown. Deal with it.

And I do think Taylor made a case out of whole cloth.

[FromWayDowntown]

I'm thinking they saw no merit to Judge Taylor's ruling. It's a smackdown. Deal with it.

Lucky that you found a blogger to agree with you, eh?

[Mr. Peabody]

I'm thinking they saw no merit to Judge Taylor's ruling. It's a smackdown. Deal with it.

And I do think Taylor made a case out of whole cloth.

Are these your actual opinions or did you steal this post from Power Line Blog as well?

[FromWayDowntown]

I'll take another stab at "your" point, though. The government's burden in obtaining the relief granted by this order is not particularly onerous. It had to show that there was some likelihood that it would prevail on the merits -- you read the blogger's words and take from that a belief that the Court has expressed a preliminary view as to which side will ultimately prevail; I'm fairly certain that the Court has done nothing other than acknowledge that the government's appeal isn't frivolous. That is the consideration of the merits, and from afar, it strikes me as correct.

Having shown that its appeal is not frivolous, the government had to meet the second prong of the test: the potential damage to each side and the public interest served by permitting the status quo to prevail. In a case involving a declaratory judgment, it's not terribly remarkable that the Court would balance those equities in favor of the government.

It's curious to me that you're steadfastly unwilling to address either of those points. Perhaps there isn't a blogger who's taken them on as of yet. Hopefully, one will and then we can continue this discussion.

[Yonivore]

I'll take another stab at "your" point, though. The government's burden in obtaining the relief granted by this order is not particularly onerous. It had to show that there was some likelihood that it would prevail on the merits -- you read the blogger's words and take from that a belief that the Court has expressed a preliminary view as to which side will ultimately prevail; I'm fairly certain that the Court has done nothing other than acknowledge that the government's appeal isn't frivolous. That is the consideration of the merits, and from afar, it strikes me as correct.

Having shown that its appeal is not frivolous, the government had to meet the second prong of the test: the potential damage to each side and the public interest served by permitting the status quo to prevail. In a case involving a declaratory judgment, it's not terribly remarkable that the Court would balance those equities in favor of the government.

It's curious to me that you're steadfastly unwilling to address either of those points. Perhaps there isn't a blogger who's taken them on as of yet. Hopefully, one will and then we can continue this discussion.

Wow, you got all that from the, "judges said that they balanced the likelihood an appeal would succeed, the potential damage to both sides and the public interest."

Because I get something totally different. When the San Francisco Gate quotes the judges as saying they stayed Taylor's ruling based on the "likelihood an appeal would succeed," I read that to mean the 6th Circuit unanimously believes in the "likelihood an appeal would succeed."

[Mr. Peabody]

Wow, you got all that from the, "judges said that they balanced the likelihood an appeal would succeed, the potential damage to both sides and the public interest."

Because I get something totally different. When the San Francisco Gate quotes the judges as saying they stayed Taylor's ruling based on the "likelihood an appeal would succeed," I read that to mean the 6th Circuit unanimously believes in the "likelihood an appeal would succeed."

Nope, the language comes from the standard four-part federal test for granting temporary or preliminary relief on appeal.

Four-part test --
(1) a substantial likelihood of success on the merits; (2) that irreparable injury will be suffered if the relief is not granted; (3) that the threatened injury outweighs the harm the relief would inflict on the non-movant; and (4) that entry of the relief would serve the public interest. Ingram v. Ault, 50 F.3d 898, 900 (11th Cir. 1995)

Nice try though.

[Yonivore]

Nope, the language comes from the standard four-part federal test for granting temporary or preliminary relief on appeal.

Four-part test --
(1) a substantial likelihood of success on the merits; (2) that irreparable injury will be suffered if the relief is not granted; (3) that the threatened injury outweighs the harm the relief would inflict on the non-movant; and (4) that entry of the relief would serve the public interest. Ingram v. Ault, 50 F.3d 898, 900 (11th Cir. 1995)

Nice try though.

Well, then, there you go. It passed the test that there is a "substantial likelihood of success on the merits."

If the 6th Circuit didn't agree -- unanimously -- that it passed this test, why grant relief?

I rest my case. This law stuff ain't so hard now, is it?

[Mr. Peabody]

Well, then, there you go. It passed the test that there is a "substantial likelihood of success on the merits."

If the 6th Circuit didn't agree -- unanimously -- that it passed this test, why grant relief?

I rest my case. This law stuff ain't so hard now, is it?

Again, all that means is that the appeal is not frivolous. It does not mean that the trial court's decision will be overturned.

[Yonivore]

Again, all that means is that the appeal is not frivolous.

No, it means a little more than that. It means the appeal has (1) a substantial likelihood of success on the merits; (2) that irreparable injury will be suffered if the relief is not granted; (3) that the threatened injury outweighs the harm the relief would inflict on the non-movant; and (4) that entry of the relief would serve the public interest. Ingram v. Ault, 50 F.3d 898, 900 (11th Cir. 1995)

It does not mean that the trial court's decision will be overturned.

No. But, it's a pretty good sign.

[FromWayDowntown]

If the 6th Circuit didn't agree -- unanimously -- that it passed this test, why grant relief?

Since you're usually such a stickler for details, please indulge me the opportunity to note that this order is issued by 3 of the 22 judges on the Sixth Circuit. Hardly 6th Circuit unanimity.

I rest my case. This law stuff ain't so hard now, is it?

Particularly when you misread things in your favor and don't really worry about what the law actually is.

Activist.

[FromWayDowntown]

No, it means a little more than that. It means the appeal has (1) a substantial likelihood of success on the merits; (2) that irreparable injury will be suffered if the relief is not granted; (3) that the threatened injury outweighs the harm the relief would inflict on the non-movant; and (4) that entry of the relief would serve the public interest. Ingram v. Ault, 50 F.3d 898, 900 (11th Cir. 1995)

I'm not sure how on Earth the panel could have determined that the government is likely to win on the merits unless it chose to do so: without reading the record and without the benefit of extensive factual and legal briefing on the merits. The motion was likely about 10 double-spaced pages, most of which were assuredly committed to explaining why the government meets the test described above. It would be unfathomable to me that the government could do that and lay out all of the facts and law supporting its arguments to such an extent that the panel could have reached any conclusion on the merits, other than a conclusion that the appeal was not friviolous and, thus, had a substantial (as opposed to minimal) likelihood of success on the merits.

But, I'm not blessed with the keen insight into the minds of judges that Yonivore and his ghost writers apparently possess.

No. But, it's a pretty good sign.

Or, it's a pretty predictable ruling.

[Yonivore]

I'm not blessed with the keen insight into the minds of judges that Yonivore and his ghost writers apparently possess.

No, apparently, you're not.

Or, it's a pretty predictable ruling.

Or, maybe, just a waste of the court's time.

[xrayzebra]

Well if one of the parties on the phone is an American citizen then the law should be followed correct? You would need to get the warrant even if you have to wait until after the fact? What is so hard about that?

No that isn't correct. What part of INTERNATIONAL do you not understand.
DOMESTIC you "normally" need warrants. Read a little Texas law and you
will find that if one party, in Texas, agrees/participates in call it can be
recorded, WITHOUT, the other parties consent or knowledge. So called
phone tap laws vary and are very misleading. There is such a thing as a Pen
Register, law enforcement can get a warrant for one of those easily. Law
enforcement can obtain phone records easily and the customer doesn't have
to be notified for some time of this fact.

But when you put a call up INTERNATIONALLY expect to be listen to. NOT
just by this country but by any or all countries with the capability, which
most have. Most western nations run some sort of listening post all over
the world. some even WITHIN their own countries with no legal
problems.

[Mr. Peabody]

I'm not sure how on Earth the panel could have determined that the government is likely to win on the merits unless it chose to do so: without reading the record and without the benefit of extensive factual and legal briefing on the merits. The motion was likely about 10 double-spaced pages, most of which were assuredly committed to explaining why the government meets the test described above. It would be unfathomable to me that the government could do that and lay out all of the facts and law supporting its arguments to such an extent that the panel could have reached any conclusion on the merits, other than a conclusion that the appeal was not friviolous and, thus, had a substantial (as opposed to minimal) likelihood of success on the merits.

Maybe, the government attached some posts from the Power Line Blog as exhibits to the motion.

[George Gervin's Afro]

No that isn't correct. What part of INTERNATIONAL do you not understand.
DOMESTIC you "normally" need warrants. Read a little Texas law and you
will find that if one party, in Texas, agrees/participates in call it can be
recorded, WITHOUT, the other parties consent or knowledge. So called
phone tap laws vary and are very misleading. There is such a thing as a Pen
Register, law enforcement can get a warrant for one of those easily. Law
enforcement can obtain phone records easily and the customer doesn't have
to be notified for some time of this fact.

But when you put a call up INTERNATIONALLY expect to be listen to. NOT
just by this country but by any or all countries with the capability, which
most have. Most western nations run some sort of listening post all over
the world. some even WITHIN their own countries with no legal
problems.

So the govt can listen to a call that originates in the states without any type of oversight? Sorry but I assumed that I had some basic privacy rights when I talk to my brother in Italy but I guess if Bush decides to listen to my call for no other reaon than he wants than all is well in ray's world. sorry But I like my calls to be private and if the govt feels the need to listen they better get a warrant..

[FromWayDowntown]

No, apparently, you're not.

Since you're so certain that this is a signal about a merits-decision, I'm relieved to know that your comfortable with judges making merits decisions before any briefs have been filed.

Where I'm from, that's called "judicial activism."

Unless, of course, the decision goes a conservative's way.

[Yonivore]

Since you're so certain that this is a signal about a merits-decision, I'm relieved to know that your comfortable with judges making merits decisions before any briefs have been filed.

Maybe her ruling was just that ed up FWD.