Wednesday, August 23, 2006

Would Ann Althouse call this "carelessness," or what would she call it, do you think?

Judge Anna Diggs Taylor's decision in American Civil Liberties Union v. National Security Agency, which enjoins Bush’s warrantless surveillance program, was almost instantly reviled by wingnuts everywhere, almost before they even had time to inform themselves on the case. The talking point of the day seemed to be that the decision was sloppy and careless. (I suppose, from one point of view, a black woman jurist taking on the president is, by definition, sloppy and careless.) Glenn Greenwald has had some excellent posts analyzing the "experts" who jumped in and too carelessly accused Taylor of being careless -- one of them being Ann Althouse.

Althouse's commentary, which culminated in a New York Times Op-Ed piece today, struck me as a poorly reasoned ad hominem attack on Taylor and a "divine right of kings" defense of the president -- considering the source, only to be expected. But what especially caught my eye was this barb that first appeared on her blog (emphasis added):
Judge Anna Diggs Taylor ends her opinion with a quote from Earl Warren, whom she refers to as "Justice Warren." How can you forget to call him Chief Justice? -- Ann Althouse, Althouse, 8/20/06
She seemed pleased with her line about Taylor being too dim to know what to call the Chief Justice, so she repeated it to kick off her Op-Ed today:
To end her opinion in American Civil Liberties Union v. National Security Agency — the case that enjoins President Bush’s warrantless surveillance program — Judge Anna Diggs Taylor quoted Earl Warren (referring to him as “Justice Warren,” not “Chief Justice Warren,” as if she wanted to spotlight her carelessness): “It would indeed be ironic if, in the name of national defense, we would sanction the subversion of ... those liberties ... which makes the defense of the nation worthwhile.” -- Ann Althouse, New York Times, 8/23/06
Far be it from me to challenge a law professor on a matter of terminology, but something tugged at the back of my mind. Was she making not only a trivial accusation here, but a false one as well? My understanding as a sometime journalist is that when citing the Chief Justice's written opinions, the preferred title is "Justice," since in his opinion he is simply acting as first among equals. The opinion, in and of itself, carries no more weight than that of any other justice, and thus "Justice" is appropriate. In contrast, in referring to the Chief Justice's duties as head of the federal court system -- or in an impeachment trial -- as well as a general public honorific, using the full title would be warranted and appropriate.

Being unable to find a rule confirming my understanding regarding accepted usage, I decided to search the New York Times archives for examples of their usage. Imagine my surprise when one of the first citations that came up was another Althouse Op-Ed (sorry about the Times Select link):
Well, quite aside from the tedium of cliché, we might want to consider whether Judge Alito really is all that much like Justice Scalia. If you're old enough, you might remember how savvy it once seemed to respond to the nomination of Harry Blackmun by lumping him with Warren Burger and calling them ''the Minnesota Twins.''

Both men were appointed by Richard Nixon, who, like George W. Bush, ran for office saying he wanted to appoint strict constructionists to the bench. Yet while Justice Burger remained conservative, Justice Blackmun went on to write the opinion legalizing abortion in Roe v. Wade and, eventually, to vote consistently with the liberal justices. -- Ann Althouse, New York Times, 11/01/05
And that would be Chief Justice Warren Burger, right?

It was Emerson who famously said, "A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines." Apparently the New York Times agrees -- at least when it comes to selecting Op-Ed columnists.

(Cross-posted at Daily Kos.)


Thenonsequitur said...

Nice commentary. Tomorrow I'll put something up on my blog about the Althouse argument. Crap.

Little Thom said...

Ha! I started to look y'day for one of those, had to get back to work. Thanks, and too good. I'll emailing Ann now.