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The Unpersuasive Ethics Claim Against Judge Taylor:
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.
therut:
Would there be those insisting that a Judge who gave money to the NRA and was a trustee and officer of their charitable Foundation would be biased if hearing a Second Amendment case where the NRA was the plantiff or defendent. Hummm I wonder how loud the screaming would be in the MSM and NYT and such. It would be make one deaf. Would that be also O:K.? Or is it because it was a charitiable group she gave to that then funnelled the money to the ACLU that makes it O:K?
8.23.2006 3:41pm
Erick:
Does Gillers actually have a real job, or is manufacturing ethics charges against judges a full time job?
8.23.2006 3:59pm
Marcus1 (mail) (www):
Was there a funnel involved?

If the person was a trustee and officer of the NRA's charitable foundation (if indeed it has one) I think that might be a problem. If they just gave money to the NRA recently, I think that would be less of a problem.

If they gave money to a conservative organization, and it gave money to the NRA, I don't think anyone would have much of a complaint (although I suppose your liberal counterpart would probably make it anyway).
8.23.2006 4:00pm
Philistine (mail):

Or is it because it was a charitiable group she gave to that then funnelled the money to the ACLU that makes it O:K?


Pretty much.

In the same way that had the foundation donated money to a soup kitchen run by the Catholic Church, there would be no legitimate suggestion that she should recuse herself from all cases in which the Church or one of its Dioceses was a party.
8.23.2006 4:02pm
A.S.:
Does Gillers actually have a real job, or is manufacturing ethics charges against judges a full time job?

No, Gillers job is much more complicated. Gillers job is to manufacture ethics charges against conservative judges and to absolve liberal judges of ethics charges. As he did here. You see?
8.23.2006 4:08pm
A.S.:
Orin wrote: 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

Nobody has alleged that her conflict of interest influenced her opinion. But that doesn't matter! If a judge has a conflict of interest (and I'm not saying she does, although it looks pretty fishy to me), that is a problem whether or not the actual opinion was influenced, no? After all, how would ever show that a conflict of interest actually influenced a judge's opinion? The purpose of the conflict of interest rules is to prevent that type of inquiry from having to be made.

Accordingly, I think Orin went a little too far here.
8.23.2006 4:13pm
Bpbatista (mail):
In regard to conflicts of interest, Liberals have made far more out of far less when it comes to conservative judges.

Exhibit A: Scalia attending judicial seminars.
8.23.2006 4:22pm
poster child (mail):
I thought that Judge Taylor's opinion sucked (not to mention disagreeing with the ultimate outcome); however, it seems to me that giving money to a party (while indicating some level of agreement with the party's purpose/policies, etc.) is not nearly the same as receiving money (or some other benefit) from a party. It still doesn't look good, which is why disclosure would have been appropriate, but it's hard to say that Judge Taylor would have felt like she "owed" the ACLU a favorable decision on the basis that her group had previously donated money to it.
8.23.2006 4:25pm
Luke:
I think poster child has it right. People are conflating a conflict of interest where the judge might benefit from the ultimate outcome with this situation, where the judge receives no benefit. In fact, by helping the ACLU win, judge Taylor has ensured its continued survival, meaning she will likely have to donate/contribute even more money to the ACLU in the future. Which means ruling for the ACLU in this case was AGAINST her self interest! ZOMG!
8.23.2006 4:27pm
therut:
Yes the NRA does have a charitable foundation. It is not used for politics or lobbying however. It is used for firearms safely training espically of the POLICE.
8.23.2006 4:28pm
Richard Riley (mail):
I don't think Orin went too far at all. I think the conflict of interest claim against Judge Taylor is completely without merit (and I am not a fan of her NSA opinion).

Here is a comment of mine from earlier today in the thread under Jim Lindgren's post below relating to Ann Althouse's NYT op-ed today:

"On another point, I think it's unfair to accuse Judge Taylor of a possible 'conflict of interest' based on her being a trustee of the Community Foundation of Southeastern Michigan, as reported in the NYT article mentioned in a comment above.

"http://www.nytimes.com/2006/08/23/washington/23judge.html (subscrip. link)

"The purpose of 'community foundations' like this is to support a wide range of organizations with no particular attention to their policy orientation. This community foundation's website makes clear it's devoted to the general doing of good in southeastern Michigan, not to specific support of the aims of the ACLU or any other organization. The ACLU's grants were undoubtedly among hundreds given by this foundation during the last few years.

"http://www.cfsem.org/about_us/index.html

" 'Community foundations' are the most anodyne of charitable grantmakers. This is not an issue, in my view."
8.23.2006 4:31pm
SeaLawyer:

This community foundation's website makes clear it's devoted to the general doing of good in southeastern Michigan,



If this is really the case then why is it donating money to the ACLU?
8.23.2006 4:43pm
Duncan Frissell (mail):

actual conflict of interest.

What about the actual conflict of interest of political bias. Shouldn't that require recusal by a judge since it suggests pre-judging. We know she's hard-left (her attempted hijacking of the Michigan Affirmative Action case).

Eugene has said in the past that a hard-libertarian can't be a judge. Why can a commie be a judge?
8.23.2006 4:46pm
SeaLawyer:
While I will agree Judge Taylor doesn't owe the ACLU anything, the question is would she favor the group in a case? Clearly she is a supporter of the ACLU, and by reading the NSA opinion it is clear she does not favor the Bush administration. By this I think she should have recused herself do to the fact she could not remain impartial.
8.23.2006 4:51pm
SR (mail):
While I will agree Judge Taylor doesn't owe the ACLU anything, the question is would she favor the group in a case?

Does this mean that you think that she would have been inclined to rule differently had another group brought the case? If not, there is no conflict of interest or bias.

This whole issue of her being on the board of an organization that once gave money to an ACLU affiliate in Michigan is ridiculous.
8.23.2006 4:56pm
Third Party Beneficiary (mail):
"Clearly she is a supporter of the ACLU, and by reading the NSA opinion it is clear she does not favor the Bush administration. By this I think she should have recused herself do to the fact she could not remain impartial."

Do you also believe that state-level judges who campaign for election/retention on the grounds that they will be "tough on crime" and not "let criminals off on technicalities," etc., should recuse themselves from all criminal cases since they obviously aren't impartial toward criminal defendants?
8.23.2006 4:57pm
SeaLawyer:

Does this mean that you think that she would have been inclined to rule differently had another group brought the case? If not, there is no conflict of interest or bias.



It is a possibility that she would have ruled differently if a different group brought the case or if the case was against a different administration.
8.23.2006 5:20pm
Third Party Beneficiary (mail):
"It is a possibility that she would have ruled differently if a different group brought the case or if the case was against a different administration."

We can postulate that as a hypothetical with every judge where the US government is one of the parties -- if the judge was appointed by the current ruling party then the judge must be biased in favor of the government; if the judge was appointed by the party currently out of power then the judge must be biased against the government. Ergo, all judges should recuse themselves from all cases in which the US government is appearing as a party.
8.23.2006 5:25pm
TruthInAdvertising:
Ridiculous is the correct word for the claim. Just in the last year alone by scanning the press releases, the Foundation has given around $17 million dollars in grants.

http://www.cfsem.org/press_room/news.html

The ACLU stated that they've gotten around $125,000 in the past 7 years, which is a drop in the bucket of the total amount given by the Foundation. Plus, as a Trustee, it's likely that Diggs has little involvement in the selection or awarding of grants. The Foundation has a director, professional staff and a competitive grants process and Diggs likely couldn't affect who gets money, even if she wanted to direct to a certain group.
8.23.2006 5:28pm
Anderson (mail) (www):
Does Gillers actually have a real job, or is manufacturing ethics charges against judges a full time job?

"To the priest, nothing is pure; to the doctor, nothing is wholesome; to the soldier, nothing is safe." --And to the ethicist, nothing is innocent.

(My dad loved to quote that, but I've never figured out the source.)
8.23.2006 5:32pm
SeaLawyer:
After reading the opinion does it really sound like she was impartial? I am not saying every judge cannot be impartial, and the ACLU donation does not by itself mean she should have stepped down from the case, it is just one more thing against her.
8.23.2006 5:33pm
noahpraetorius (mail):
Judges are biased in political cases. Question is what to do about it. I suspect muddling thru is our only option.
8.23.2006 5:40pm
noahpraetorius (mail):
This particular case is being touted as an example of forum shopping. Excuse my ignorance but aren't there mechanisms in place to guard against that very thing in federal court such as random case assignment?
8.23.2006 5:44pm
Third Party Beneficiary (mail):
"aren't there mechanisms in place to guard against that very thing in federal court such as random case assignment?"

Yes, there are. However, some districts are known for having numerous judges of a particular ideological bent and/or a jury pool that has a particular slant. Thus a plaintiff can theoretically increase the likelihood of getting a favorably predisposed judge and/or jury. But remember, this is only evil forum shopping when private litigants do it. When the DOJ moves a prisoner around to try him in a court that has nothing to do with the alleged crime or place of arrest but just happens to be known as a pro-prosecution forum, then that's A-OK.
8.23.2006 5:57pm
LeftLeaningVolokhReader:
Same group that accused a Federal Court Judge for having a conflict of interest over the prosecution of a Taiwanese donor to the clinton administration. The basis: being chinese. result: stripped of right to appear pro hac vice in the 2nd circuit.
8.23.2006 6:05pm
Greedy Clerk (mail):
Why can a commie be a judge?

The level of discourse in the comments section never fails to impress me. The evidence of Judge being a Communist is, of course, overwhelming.
8.23.2006 6:45pm
volokh watcher (mail):
Speaking of conflicts, what would seem to be a real conflict of interest that should concern all those posting here who are worried about the purity of the Third Branch would be for a judge to decide an election dispute in favor of the candidate for whom s/he voted.

Oh, I'd forgotten. That would be Bush v. Gore.

Right, but Taylor is a Pinko Commie No-Good [fill in the blank] because she donated money to an organization that donated money to an organization that supported the plaintiffs.

I see the distinction that favors those five Republican Justices who put Bush into office over Taylor. I see it very clearly.

The Big 5 just voted for Bush. Taylor gave MONEY. Huge difference.
8.23.2006 7:12pm
Brian G (mail) (www):
Unpersuasive to whom? Not to me. Just ask yourself this: If it were Scalia, Thomas, Roberts, Alito and their ilk on down, would the reaction to this decision be different? You bet it would, and you know it.

However, this kind of nonsense goes on all the time in our courts. The ACLU has their hack judges everywhere. The best result is not an ethics claim against her, but an embarrassing upbraiding by the 6th Circuit in their reversal. Of course, if she is as shameless as that tool Reinhardt on the 9th Circuit, that may not be as effective as I would hope.

One other thing: I see the mentality of her decision in my law school classes every day: "It violates the Constitution because I disagree with it, and I hate Bush, so if he did it, it must be unconstitutional." The saddest thing about all of this is that many respected, highly-viewed attorneys who agree with the result are not troubled by the ridiculous logic and reasoning behind it.
8.23.2006 7:15pm
Davebo (mail):

Judges are biased in political cases.


But is this a political case? I think not.

It's a case to decide if the administration violated the law, and possibly the constitution.
8.23.2006 7:40pm
glangston (mail):
What if a judge were in her position and the money went to the NRA and we were talking a 2nd Amendment case? I think the fallout would be substantially greater.

She probably had a duty to disclose. The comment "There are no hereditary Kings" seemed to play to a bias and made me concerned that she was making an emotional argument as much as a legal one. I guess you're forced in this day and age to market legal opinions.
8.23.2006 8:02pm
pireader (mail):
Off-topic reply to Anderson --

Your dad's quotation is from a letter by Lord Salisbury (quoted in Tournament of Shadows, Karl E. Meyer and Shareen Blair Brysac, p. 178).

In full: "No lesson seems so deeply inculcated by the experience of life as that you should never trust experts. If you believe the doctors, nothing is wholesome: if you believe the theologians, nothing is innocent: if you believe the soldiers, nothing is safe. They all require to have their strong wine diluted by a very large admixture of insipid common sense."
8.23.2006 8:02pm
neil k. (mail):
Judge Taylor is a trustee of the charitable foundation, not a donor. Well, she's probably a donor too, but that's not the issue.

I'm amused by the conflict of interest argument, since it's often made by people who don't believe that the plaintiffs have standing to begin with. But if there are no interested parties, then how can there be a conflict of interest for the judge? (Yes, a little glib, but nonetheless there's something there.)
8.23.2006 8:03pm
neil k. (mail):
Unpersuasive to whom? Not to me. Just ask yourself this: If it were Scalia, Thomas, Roberts, Alito and their ilk on down, would the reaction to this decision be different? You bet it would, and you know it.

Now that's what I call persuasive!
8.23.2006 8:06pm
John_R (mail):

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.


I think this reveals the most serious flaw in the "she reached the right conclusion, so the quality of the opinion doesn't matter" POV. A properly crafted opinion would have gone a long way towards shielding her from this sort of criticism.
8.23.2006 9:01pm
Ship Erect (mail) (www):
A properly crafted opinion would have gone a long way towards shielding her from this sort of criticism.

But the criticism would've come anyway, since any stand against Bush is interpreted by some as "siding with terrorists." I very much doubt that even an airtight opinion (which would have required well-crafted arguments by the DoJ, by the way) would have satisfied these people.
8.23.2006 9:40pm
Eugene G. Bernat (mail):
All cases of judicial review, where the actions of the executive or legislative branch are called into question are some degree affected by the judge's political views.
8.23.2006 10:29pm
SG:
Ship Erect:

You're undoubtedly correct that even an airtight opinion would not have been immune from criticism from some. Nor, to be fair, would an airtight opinion that upheld the legality of the program been immune from criticism, just by different folks.

What I don't understand is why everything devolves into political catfighting almost instantaneously. This opinion just contributes to that. I mean, while I'm inclined to believe that (to the extent that I correctly understand it) the surveillance program is probably legal and good policy, I can understand why people are concerned. I'm concerned. Giving the executive (of any party) open-ended surveillance powers is a bad idea and warrants some checks and balances. However requiring criminal level procedural checks before surveilling a suspected enemy agent in a time of war seems insane (Did FDR need warrants to use a HuffDuff?).

It's sad to realize that these same arguments would be had, just with the roles reversed, if we were in a Gore administration. And it's even sadder to think that includes the federal judiciary.
8.23.2006 10:51pm
Ship Erect (mail) (www):
What I don't understand is why everything devolves into political catfighting almost instantaneously.

The Earth turns for everyone, and I think our current state of hyperpartisanship is the U.S.' way of expressing the same historical undercurrents that brought the Ayatollah to power in Iran: fundamentalism, from music to religion to politics, is the name of the game and has been for thirty years.

I truly doubt a Gore administration would have the same expansive view of the executive that Bush holds. Cheney, Rumsfeld et al worked for Nixon and Ford and saw the legislature and judiciary (rightly, in my view; wrongly, to them) rein in the excesses that caused Watergate. Would Gore have been different? Impossible to know, but we can say with some probability that Gore would not have had the same incompetence problem that led to Bush being blamed for the destruction of New Orleans, nor would the U.S. have invaded Iraq after 9/11. As long as we're speculating, Gore would not have gone on a month-long vacation during August 2001, and maybe would have stopped 9/11 from even happening. Now, is that partisan speculation, or is it an even-handed viewpoint based on the facts?

And if it's a "time of war," by the way, why did Congress not pass a declaration of war? Bush's powers still would have increased, and he would not have had to rely on the AUMF for the legality of programs as far afield as the "Terrorist Surveillance Program" and Guantanamo Bay.
8.23.2006 11:46pm
dick thompson (mail):
Ship Erect,

You take a candidate who has to hire a consultant to tell him whether to act macho or not and you think he will stop the 9/11 attack and handle the incompetent Louisiana mayor and governor in such a way that they will give him the La Nat Guard to fight the hurricane? Never happen!!
8.24.2006 12:12am
hoystory (mail):
I'd just like to say that I agree with John_R's comment. If the opinion had been of the highest legal quality and addressed all of the issues Eugene and others here raised, then these charges would have heft.
8.24.2006 12:36am
therut:
If I remember right Gore was not aganist the war at first. I remember a speach he gave in CA I believe at the Commonwealth Club (Or some such name) he was asked a question and he actually took up for Bush. Of coarse this was early on the Dems could not play 20/20 game at the time. He had no idea at the time but was leaving the door open (as were most Dems) incase the War was a blooming success. Imagine how they would look if they took their 20/20 stance without their hindsight???????????????????????? I do not have a short memory.
8.24.2006 12:41am
Christopher Cooke (mail):
Perhaps someone would care to analyze the relevant Canon of Judicial Ethics and explain to us why this relationship was or was not conflict requiring disclosure or recusal, rather than simply spouting off opinions? I would hope that someone here among all of the lawyers and law professors might bother to look this up.
8.24.2006 1:14am
SG:
therut, I have a similiar recollection. I also recall that Gore was instrumental in drumming up support for Clinton's bombing of Iraq in '98 (Operation Desert Fox?). I also recall Floridians irate over the Clinton-era FEMA response to hurricanes. Whereas, I don't recall Bin Laden being brought to justice after the embassy bombings or the USS Cole.

So Ship Erect, I don't think your speculation qualifies as an even-handed reading of the facts.

BTW, I don't intend any of that as a slam on Gore (or Clinton) nor as a defense of Bush. It's just that I don't think people with (R)'s after their names are inherently evil while those with (D)'s are inherently good. Or vice versa. I'm always amazed (well, dismayed) at those who can determine correctness by party affiliation.
8.24.2006 1:18am
Ship Erect (mail) (www):
That's the first time I've heard Desert Fox compared to our Iraq misadventure--of course Clinton didn't believe that a thousand flowers of democracy would bloom and thus did not invade, so the comparison's a bit thin. Gore's speech to the Commonwealth Club is here, and I don't think anyone without an axe to grind can interpret his speech as "taking up" for Bush: "Now, the timing of this sudden burst of urgency to immediately take up this new cause as America's new top priority, displacing our former top priority, the war against Osama Bin Laden, was explained innocently by the White House chief of staff in his now well-known statement that 'From a marketing point of view, you don't introduce new products in August.'"

Strongest argument against Clinton's handling FEMA seems to be over Hurricane Floyd in the Carolinas in 1999, but the only reference I could find was from an ardent Bush supporter in the wake of Katrina. At any rate, everyone must agree that Gore would not have appointed over-his-head Brownie to head FEMA.

Given that DF was a "wag the dog" moment, can you imagine the Republican response against Clinton if he had invaded Afghanistan to find OBL? We needed the worst attack on U.S. soil since Pearl Harbor to justify that. If it was such a vital objective, why did Bush invade Iraq, leaving OBL probably in Pakistan?

FWIW, I voted for Nader in 2000, thinking that Bush and Gore would have been roughly the same. The last five years have handily disproven my belief.
8.24.2006 4:25am
Public_Defender (mail):
Loose disqualification rules permit parties and lawyers to judge shop. That judge shopping tarnishes the perception of impartiality.

So unless there is a strong conflict (the judge's relative is a party, the judge has a real financial stake in the outcome, or the like), parties should be stuck with the judge they draw. If a litigant doesn't like the judge's ultimate decision, they can always appeal.

(On the seminars, I have argued that they are sleazy because they are freebies for government employees, but they are permitted by current judicial ethics. The solution is for judges to pay their own way. I do not think they create enough of a conflcit to warrant recusal.)
8.24.2006 6:04am
Duncan Frissell (mail):

The evidence of Judge being a Communist

I use 'commie' not Communist as an affectionate term for lefties. There is a great deal of evidence that Ms. Taylor is "of the Left".
8.24.2006 8:59am
Medis:
I think Justice Scalia was right about this: we should be very careful about requiring recusals outside of the limited cases mentioned by P_D (such as a personal financial stake or a relative being involved), because the alternative would end up forcing judges to isolate themselves from their community, which wouldn't make for good judges.

So, I think disclosure might have been a good idea (although I don't know if Judge Taylor actually recalled that the Foundation gave money to the ACLU), but recusal would not.
8.24.2006 11:33am
SG:
Ship Erect:

Thank you for demonstrating my point.

We're dealing with wicked problems
. There are no good answers, only differing degrees of bad. I keep hoping for some mature recognition of that fact, but people like you continue to convince me that we're not there yet.

BTW, according to Wikipedia,
at the time noted Bush supporter Jesse Jackson criticized FEMA's response to Hurricane Floyd.


The Hurricane Floyd disaster was followed by what many judged to be a very slow federal response. Fully three weeks after the storm hit, Jesse Jackson complained to FEMA Director James Lee Witt on his CNN program Both Sides Now, "It seemed there was preparation for Hurricane Floyd, but then came Flood Floyd. Bridges are overwhelmed, levees are overwhelmed, whole towns under water"


You know, there's a reason why we call these sorts of things disasters. If they could be fixed up in a weekend, we'd call them inconveniences.
8.24.2006 12:56pm
Larry Fafarman (mail) (www):
I think it is more an issue of "perceived bias" rather than "conflict of interest." I think that the term "conflict of interest" should be restricted to situations where a judge actually stands to benefit financially, where the judge is an officer or a member of an organization that is a party to the case, or where the judge is a relative or a close personal friend of a party. It would be difficult or impossible to eliminate all perceived biases — for example, Associate Justice Ginsburg was once an attorney for the ACLU. As for Judge Taylor, I think that the perceived bias would still be there if the donation to the ACLU had occurred before she became a judge rather than after. However, I think that to minimize the possibility of a perceived bias, a newly appointed judge should immediately quit all positions and all memberships that are likely to generate a perceived bias. What if, for example, Judge Taylor had ruled the other way in ACLU v. NSA and it was then disclosed that she had approved a donation to StoptheACLU? There was no good reason at all for her to be an officer of that organization that donated to the ACLU. To the maximum extent possible, a judge — like Caesar's wife — should be above suspicion. At the very least, Taylor should have disclosed the ACLU connection at the start of the trial in order to avoid the possibility of future problems concerning the connection.

Bigoted Ed "It's My Way or the Highway" Brayton has again displayed his usual inability to see both sides of a story — his article on this subject is titled, "Silly Accusations Against Judge Taylor."

I would like to post these comments on Ed's blog too, but I am permanently banned there because he did not like my literal interpretation of a federal court rule.
8.25.2006 1:31am
Medis:
Larry,

You write: "However, I think that to minimize the possibility of a perceived bias, a newly appointed judge should immediately quit all positions and all memberships that are likely to generate a perceived bias."

Again, I think Scalia and others are right about this. Do we really want to cut judges off from their community like that? Overall, I don't think that is likely to make them better judges (just the opposite in fact), and I also think judges can be valuable participants in civic-minded organizations.

In that sense, I actually don't think we should require judges to do everything they can to minimize "perceived bias", because that means cloistering our judges. But I agree disclosure is a good idea.
8.25.2006 8:53am