Althouse thinks that the President's claim that neither courts nor Congress can interfere in his conduct with regard to national security "is a serious argument, and judges need to take it seriously," but she never says why that argument is "serious" or what the court failed to consider in rejecting the administration's theories of presidential omnipotence. Althouse apparently thinks that repeating the words "serious" and "difficult" enough times will bestow on her little platitudes the scholarly weight which her analysis so plainly, so embarrassingly lacks.
Ironically, although Althouse devotes the bulk of her Op-Ed to criticizing Judge Taylor for failing to consider important arguments, or failing to consider them "seriously" enough, it is Althouse's Op-Ed that is completely bereft of reasoning. It's basically one long list of political cliches and banal ad hominem more suitable to a Rush Limbaugh opening monologue than some "serious" legal analysis of a judicial opinion. Althouse -- who yesterday revealingly accused Judge Taylor of being "barely literate" and said Taylor's decision "nauseated" her -- wastes the Op-Ed space of the NYT to mock Taylor for referring to Earl Warren as "Justice Warren," rather than "Chief Justice Warren"; predictably accuses Taylor of being an "activist" judge; and meaninglessly claims that Taylor failed to "suppress their personal and political willfulness." None of this is accompanied by any substantive rationale; it's just one trite, empty, pro-Bush bumper sticker judge insult after the next.
That Althouse's "critique" of Judge Taylor's opinion is so free of substance is not merely ironic but also entirely unsurprising. As I documented yesterday (based on Althouse's forced admissions), she actually had no idea what even happened in this case at least until yesterday. The Bush Department of Justice made the decision not to address the merits and substance of the ACLU's constitutional claims despite being ordered to do so by the court -- twice. Althouse has spent the law week attacking the court for its failure to address arguments that the DoJ never raised -- and now makes the same inane, patently misinformed criticisms of Taylor in The New York Times.
But it is nothing short of humiliating that Althouse had no idea that any of that happened in this case. She hasn't followed this case at all. She has no idea what took place. Just as is the case for her good friend and colleague, Orin Kerr, whom she cites for support in her Op-Ed, Althouse is criticizing Judge Taylor for an "incomplete" opinion because Althouse is entirely ignorant of the fact that the DoJ chose not to advance any substantive arguments on the merits of these claims. She quotes Kerr to accuse Taylor of issuing an "incomplete" opinion, but Kerr -- like Althouse -- simply did not know that the DoJ made no substantive arguments that went to the merits of this lawsuit (because the DoJ, reflecting the Bush administration's belief that it is above judicial review, argued only that the court had no right to decide these issues).
Although these critical events in this lawsuit were all public and reported by major newspapers, Althouse learned of them for the first time -- as she reluctantly admitted -- by reading the Comment section at Volokh on Monday, after which she had to correct a completely false factual claim she made about the case. Her ignorance about these matters was not concerning some obscure legalisitc point. Rather, she was just blissfully and inexcusably unaware of the most important fact necessary for understanding Judge Taylor's decision -- that the DoJ failed to raise any of the issues which she and her good friend, Professor Kerr, find so "immensely difficult."
Though, admittedly, the true wanker is whichever NYT editor stuck this in their pages.