Wednesday, August 23, 2006

Judge Taylor Accused of Conflict of Interest in NSA Case

I am not a lawyer or a legal scholar, but this seems like more than a bit of a stretch to me -- although that isn't stopping the right-wing hyenas from jumping all over it.

First point: Judicial Watch is a conservative organization, as they clearly state on their own website (see About Us). Obviously, that does not necessarily mean they are inaccurate or unfair in their conclusions about conflicts of interest, but it does mean what they say should not be accepted at face value.

Second, and more to the point, is the precise nature of the conflict of interest JW is claiming exists in Judge Taylor's case:

Judicial Watch, the public interest group that investigates and prosecutes government corruption and judicial abuse, announced today that Judge Anna Diggs Taylor, who last week ruled the government's warrantless wiretapping program unconstitutional, serves as a Secretary and Trustee for a foundation that donated funds to the ACLU of Michigan, a plaintiff in the case (ACLU et. al v. National Security Agency). Judicial Watch discovered the potential conflict of interest after reviewing Judge Diggs Taylor's financial disclosure statements.

According to her 2003 and 2004 financial disclosure statements, Judge Diggs Taylor served as Secretary and Trustee for the Community Foundation for Southeastern Michigan (CFSEM). She was reelected to this position in June 2005. The official CFSEM website states that the foundation made a "recent grant" of $45,000 over two years to the American Civil Liberties Union (ACLU) of Michigan, a plaintiff in the wiretapping case. Judge Diggs Taylor sided with the ACLU of Michigan in her recent decision.

If being the secretary and trustee of a local community organization that gave money to the ACLU constitutes a conflict of interest for ruling on the NSA warrantless surveillance program, then how would one characterize Justice Antonin Scalia's refusal to recuse himself from hearing the case in which the White House was refusing to turn over documents that related to Dick Cheney's conduct as head of the Energy Task Force in 2001, despite the fact that Scalia and Cheney had hunted and dined together just weeks earlier? Edward Lazarus wrote an article at Findlaw -- a highly respected legal research site -- at the time of the Scalia-Cheney recusal controversy about why Scalia should have recused himself and was wrong not to. Scalia actually boasted about how proud he was that he had not recused himself:

Conservative U.S. Supreme Court Justice Antonin Scalia had some advice Wednesday for those who questioned his impartiality after he refused to recuse himself from a case involving his hunting buddy, Vice President Dick Cheney.

"For Pete's sake, if you can't trust your Supreme Court justice more than that, get a life," Scalia said.

Scalia, addressing an audience at the University of Connecticut's law school on Wednesday, said recusing himself from the 2004 case -- which focused on an energy task force that Cheney led -- would only have given fuel to newspaper editorial writers and other detractors who have said he is too close to the vice president.

"I think the proudest thing I have done on the bench is not allowed myself to be chased off that case," Scalia said.

Seems to me that Scalia's decision to rule on a case in which the defendant, Dick Cheney, was Scalia's close personal friend, was a far clearer and more direct conflict of interest than is belonging to an organization that gave money to the ACLU while ruling on the legality of a warrantless surveillance program.

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