Wednesday, August 23, 2006

The Right Is Spitting Into the Wind on This One

Glenn Greenwald has weighed in on the Judge Taylor "conflict of interest" tempest in a teapot; and I'm gratified to see that he shares my feeling that this is a non-issue, ethically speaking. Glenn also compares the right-wing reaction to Judge Taylor's membership in an organization that gave money to the ACLU with the same crowd's response when Justice Antonin Scalia refused to recuse himself from a case in which one of the defendants was his close personal friend, Dick Cheney.

Bush supporters have suddenly developed -- literally overnight -- a profound and noble interest in the judicial ethical rules governing conflicts of interest. They're all experts on these rules now and most (though not all) have shockingly decided that Judge Anna Diggs Taylor acted improperly by ruling on the NSA case even though she is a Trustee of an organization that donated money to the ACLU (which means she is a corrupt person, which means that her ruling was wrong, which shows that the Commander-in-Chief did nothing wrong). Experts in judicial ethics are making clear that this was hardly an arrangement requiring recusal, but at worst, should have been disclosed.

To illuminate what is really going on here, let us note the fact that the same crowd attacking Taylor now was quite dismissive over a far more serious and corrupt "conflict of interest" -- the fact that Supreme Court Justice Antonin Scalia went on an intimate little hunting trip with Vice President Dick Cheney just weeks after the U.S. Supreme Court decided to accept an appeal in the lawsuit in which Vice President Cheney had been sued for his failure to reveal facts surrounding the Energy Task Force. Cheney never disclosed his hunting excursion, nor did Scalia. Instead, the parties discovered this only when The Los Angeles Times learned of it and then reported it.

As the Washington Post reported at the time, "some legal ethicists and dozens of newspaper editorials have called on Scalia to stay out of the case." But Cheney's good friend and hunting buddy refused to recuse himself, and he then proceeded to vote in favor of his good friend in that case by joining an aggressively pro-Cheney dissent written by Clarence Thomas and joined by nobody else (not even then-Chief Justice William Rehnquist).
The argument that Taylor should have disclosed this arrangement is plausible (though the argument that she should have recused herself is not). It is always best for judges to err on the side of excess disclosure, and I can't say that I would be indifferent to the relationship if I were a litigant in a case before her against the ACLU. But judges have professional relationships of all sorts with litigants and lawyers before them, and it goes without saying that Taylor had far less of an "interest" in the outcome of this case than Scalia had in the outcome of the lawsuit against his friend. Yet many of those who will now pretend to be so-very-concerned over the important rules of judicial ethics vigorously defended Scalia back then, needless to say.

Orin Kerr agrees with the consensus of opinion by the experts on legal ethics quoted in Eric Lichtblau's NYT article today -- that Judge Taylor should have disclosed her connection to the ACLU but did not need to recuse herself from the electronic surveillance case. Kerr also strongly objects to the implication by right-wing bloggers that Justice Taylor's decision was somehow influenced by her membership in the Community Foundation for Southeastern Michigan:

The New York Times has a report on the ethics issues raised by Judicial Watch in the NSA surveillance case. It turns out that Judge Taylor, the district court judge, is a trustee and officer of a charitable group that gave $125,000 to the ACLU, the plaintiff in the case. According to the legal ethics experts consulted by the Times -- Profs Lubet, Gillers, and Rhode -- Judge Taylor should have disclosed her relationship, although recusal was not necessary.

This judgment seems pretty sensible to me, but I do take objection what some will take as the broader gist of the story as reported in the Times and elsewhere. To the extent that the story raises the question of whether Judge Taylor was biased in favor of the ACLU because of some kind of financial relationship with it, that suggestion strikes me as totally bogus. I don't think Judge Taylor wrote a good opinion, but I think it's very far-fetched and rather insulting to her to suggest that her opinion was influenced by some kind of actual conflict of interest.

James Joyner makes the common-sense point that we can't expect judges to be blank slates:

... while I find the reasoning in her opinion in this case strained, to say the least, I don't see this as a big deal. Federal judges often serve on boards for groups with some public policy advocacy positions. Ruth Bader Ginsburg doesn't recuse herself from cases involving feminist groups nor did Thurgood Marshall recuse himself from cases argued by his successors at the NAACP Legal Defense Fund.

Judges have ideological biases and there's not much getting around that. So long as they have no financial stake or otherwise have a personal interest in the outcome of the case, they're not required to sit on the sidelines. Indeed, it would be difficult to have some high profile cases tried if that were the case, given that most federal judges have had long careers as political animals before and sometimes during their tenures.

At least one consistently right-wing blogger isn't buying into the uproar over this:

I am not impressed with this criticism of Judge Taylor. (Via Hot Air.) I think Judicial Watch is stretching here. If you want to criticize her for her past meddling in cases to steer them to liberal judges, I think that's fair game. And of course, criticizing her terrible NSA opinion is a no-brainer. But straining to find financial conflicts of interest where they don't exist -- don't bother.

Yes, I know the other side would go to town with this if the tables were turned. But that doesn't make it a scandal. Don't get me wrong -- I have no problem with blogs reporting the facts, but I just don't think there's anything there.

And finally, Michael van der Galien at The Moderate Voice, who was kind enough to link to my yesterday's post on this, writes:

If this is a conflict of interest, my name is mafkees.

As Liberty Street notes there are far better examples of what could be regarded a conflict of interests.

Lets not exaggerate this, shall we?


ScurvyOaks said...

I've done the research on this, and there is NOT a conflict of interest here. I don't have the time to rehash it all right now, but I've laid it out in comments at GatewayPundit and Patterico.

I like your blog -- notwithstanding that I have some areas of sharp disagreement. Cheers!

Kathy said...

Thanks for all your comments, Scurvy -- and welcome to my blog!

(Total agreement not required. Even partial agreement not required.)