Judge Taylor and the ACLU
Not a Mortal Sin, Perhaps. But A Revealing Conflict.
By Dan McLaughlin Posted in Archived — Comments (4) / Email this page » / Leave a comment »
Judicial Watch argues that Judge Anna Diggs Taylor had a conflict of interest in the NSA surveillance case because (1) one of the plaintiffs was the ACLU, (2) Judge Taylor is a Trustee of an organization that donated tens of thousands of dollars to the ACLU, and (3) the organization states that its donations are approved by its Trustees, thus indicating that Judge Taylor was personally involved in directing resources to the very advocacy group that came before her.
Clearly, this was an issue that Judge Taylor should have disclosed to the parties (as even a NY Times article quoting liberal legal ethics scholar Stephen Gillers concedes), but Orin Kerr and Patterico are less than impressed by the charge.
This is, I should stress, not a financial conflict - Judge Taylor's finances are unaffected by this case, as are those of the organization for which she is a trustee. The question is one of impartiality - can the judge be impartial, or would a litigant expect a fair hearing, where the case is advocacy litigation brpught by an advocacy group financially supported by the judge? Now, I tend towards the view that legal ethics standards shouldn't be unrealistic; judges live in the real world, they have opinions, and they do not come to the bench as a blank slate. The real question is, if you knew nothing else about this judge's background and hadn't had any proceedings yet before her, would you want a different judge if you discovered this connection to one of the parties? I think, were I the government, I might have. But much would depend on the facts - if the donation is one of many and not a large proportion of the organization's budget, it doesn't necessarily say a lot about the judge's views, whereas if she is helping steer a major proportion of the group's funds to promote the ACLU's mission, that's rather a different story.
(This is one way in which the whole absurd Vanguard-Alito flap was obviously ridiculous - given the minuscule and attenuated nature of then-Judge Alito's interest in Vanguard, no reasonable person would have cared unless they already had some other reason to want him off the case. The kerfuffle over Justice Scalia going hunting with Dick Cheney is perhaps a bit closer, but the recusal standards for Supreme Court Justices have to recognize that most of them have ties to major players in DC politics).
Anyway, this is hardly a serious sin, but it's not a frivolous issue, either. (More serious is Judge Taylor's record of interference in the Michigan affirmative action cases when her husband was a regent of the University and thus effectively a party to the case).
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Judge Taylor and the ACLU 4 Comments (0 topical, 4 editorial, 0 hidden) Post a comment »
Just to get the first comment in here, I agree that the potential conflict of interest in this case isn't that egregious. Of course if the shoe was on the other foot the Left would be screaming. Certainly if the ACLU thought they were going to ride on Diggs Taylor's sympathies and get a well-written, well-reasoned decision, they got snookered bigtime by that piece of Class A Junk that she wrote. I think we should push to have her disbarred on that basis *alone* frankly. Did they shop around for a judge that would be more likely to render a decision in their favor? You bet they did: they probably devoted a few hundred person-hours to figuring that out, but the fly in the ointment was that their hand-picked judge turned out to be incompetent.
Does that mean that Diggs Taylor was a party to that "shopping around?" No. It just means that she's incompetent and the decision is going to be overturned.
But I generally agree with Kerr, also. This decision was about publicity. Cass Sunstein thinks that the plaintiffs will eventually prevail, once it reaches appeal. Take that as you will, because it suggests the possibility that the ACLU *deliberately* chose Diggs Taylor because she was weak, in the hope of gaining some time to argue the case better on appeal.
And in the meantime, the usual suspects have gotten a hell of a free ride off the judicial system. Or at least, they thought they were going to get a free ride, until legal scholars (and you) started to point out that the decision was the equivalent of a shoddy bomb casing full of used pinball machine parts. OK this is a little rambly, but it's been a long day, and I'm tired. I'll have fresher thoughts in the morning.
I am a hawkish warmonger with a crusty demeanour and a heart of steel. But I have a softer side.
Or at least, they thought they were going to get a free ride, until legal scholars (and you) started to point out that the decision was the equivalent of a shoddy bomb casing full of used pinball machine parts.
Actually, I could probably make pretty good use out of a bunch of used pinball machine parts, depending on how far worn they are. And if it's a part that's unique to that particular machine, it could be invaluable to someone doing a restore build!
:-)
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Internet member since 1987
Member of the Surreality-Based Community
That's my prediction. This gives the left an out--to disparage only the context in which Taylor’s opinion was written, without having to refer to all the embarrassing elements (or non-elements) of Taylor's actual opinion. They don't want to discuss her reasoning, even though they see the obvious flaws. But they don't have to now. Now they can just disqualify “the process” of giving her the case in the first place, and don’t have to get their hands dirty defending Taylor's faulty reasoning. "Wonderful opinion, if only there was no conflict of interest for the judge.... I guess we’ll just have to start over from scratch now.... That's too bad."
to the phrase "activist judges". This is clearly judicial activism (and badly hatched) in the cause of political activism.
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More brilliance such as that can be found at the Academy. And yes, I know how pretentious I sound.