Covering the Front and Back Pages of the Newspaper
August 23, 2006
LAW: A Conflict of Interest?
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).
UPDATE: The New York Times (!) agrees.