Daughter of the Constitution


Anna Diggs Taylor never intended to become the first black woman to serve as chief judge of the U.S. District Court in eastern Michigan. . . .[S]he accepted out of a sense of historic duty. David Ashenfelter, Detroit Free Press, August 7

The first judge to strike down the National Security Agency’s secret warrantless surveillance program and the corollary lawlessness of its enabler, George W. Bush, continues to have her judicial competence derided by certain law professors, including some who support her basic finding but complain that her ruling had too much passion and insufficient legal analysis.

On the other hand, the 73-year-old Judge Taylor, whose legal career spans 49 years, gets high ratings from the reliable Almanac of the Federal Judiciary (“smart as hell,” says one of the comments.) And University of Chicago law professor Geoffrey Stone, author of the invaluable Perilous Times: Free Speech in Wartime (Norton Paperback), says:

“She was right as a matter of law . . . [and showed] a good deal of courage for a judge to hold unlawful a program that the President of the United States maintains is essential to the national security.” (Emphasis added.)

Another characteristic of this judge is determination. In 1957, on a scholarship at Yale Law School, she was one of only five women in the graduating class. Being black as well, she discovered that no law firm in New York or Washington was interested in this out-of-the-mainstream young woman. But in the Solicitor’s Office of the U.S. Department of Labor, she found a place—thanks to assistant secretary of labor J. Ernest Wilkins, the first black ever appointed to a subcabinet position. (There are more networks than “the old-boy network.”)

Then, moving to Detroit, she became an assistant Wayne County prosecutor for a year. In the summer of 1964, the young lawyer was in Mississippi, working in the National Lawyers Guild program to provide needed legal services for black and white civil rights workers in that citadel of racism.

On the day she arrived, three of those civil rights workers—James Chaney, Andrew Goodman, and Michael Schwerner—disappeared. A coven of the Ku Klux Klan knew where they were, having murdered them.

As Ashenfelter of the Detroit Free Press has reported, Taylor, with two companions, “drove to the Neshoba courthouse to inquire about the missing men. . . . [T]hey were menaced by a crowd of angry white people who shouted racial slurs at them. ‘We were afraid we were going to be killed,’ Taylor said.”

She more than survived. Back in Detroit, Taylor became a U.S. Attorney for a year, went into private practice, and in 1979, as an appointee of President Jimmy Carter, became the first black female district judge in the Sixth Circuit. In 1996, she moved up to be chief judge of that district court, and since 1999, has been on senior status, with a smaller caseload.

When Taylor suddenly was of national interest as the judge who would rule on American Civil Liberties Union v. National Security Agency, reporter Ashenfelter introduced her to readers beyond Detroit: “Although Taylor is a liberal with Democratic roots and defended civil-rights workers in the South in the 1960s, people who know her say she will follow the law—not her politics—in deciding the case.” In that news story, Harold Pope III, a former president of the National Bar Association (of black lawyers), said of the soon to be nationally embattled judge:

“She’s not going to let anything stand in the way of a proper analysis of the law and the facts.” Mr. Pope spoke from experience. For example, Judge Taylor approves of certain forms of affirmative action, but when Pope was a staff attorney for the city of Detroit, she ruled against him and the city—as the Free Press notes—”declaring unconstitutional a program that reserved municipal contracts for minority venders.”

On the website of the Michigan Supreme Court Historical Society (August 29), a short biography of Anna Diggs Taylor ended:

“Her success did not come easy. Taylor faced discrimination because of her race and her sex throughout her legal career. Yet, she persevered in her uphill struggle against prejudice. Anna Diggs Taylor set a standard of excellence for the abilities and performance of women in law.”

Not only women. With the American Civil Liberties Union
v. National Security Agency decision, she has focused—for those in this nation who care about the separation of powers—on the precipitous danger of future administrations following Bush’s precedent of unilateral (kinglike) powers in this war on terrorism with no discernible end.

In writing about Taylor’s rise to turbulent renown, Paul McMasters, the tribune of the Constitution at the First Amendment Center, wrote:

“Interestingly, the final words of Judge Taylor’s ruling are from Supreme Court Justice Earl Warren’s 1967 opinion in U.S. v. Robel: ‘Implicit in the term “national defense” is the notion of defending those values and ideas which set this Nation apart. . . . It would indeed be ironic if, in the name of national defense, we would sanction the subversion of . . . those liberties.’ ”

And as for the clear and present danger of unchecked, omnivorous National Security Agency spying, General Michael Hayden, when he was director of the NSA (he now runs the CIA), was asked during congressional testimony six years ago about the ACLU’s fear the awesome NSA capacities could be used against Americans. “For us to do our mission in today’s telecommunications world requires a substantial amount of capability in ways that are prohibited. Of course I have to answer yes,” he said, meaning such an outcome would indeed be possible.

Now Judge Taylor has resoundingly told the National Security Agency and the president that they are forbidden to use their surveillance powers in ways prohibited by the Constitution. Her face may never be on a postage stamp, but she surely is a daughter of the Constitution.