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The New York Times Isn't Pleased with Judge Anna Diggs Taylor

The New York Times takes a swipe at Judge Anna Diggs Taylor for not disclosing her connection to the ACLU, a plaintiff in her courtroom in the NSA case. They were just as dismayed that it was Judicial Watch that discovered Judge Taylor's conflict of interest:

When Judge Anna Diggs Taylor was given the job of deciding whether the Bush administration's wiretapping program was unconstitutional, she certainly understood that she would be ruling on one of the most politically charged cases in recent history. So it would have been prudent for her to disclose any activity that might conceivably raise questions about her ability to be impartial. Regrettably, it was left to a conservative group, Judicial Watch, to point out her role as a trustee to a foundation that had given grants to a branch of the American Civil Liberties Union, a plaintiff in the case.

Of course she knew she would be deciding one of the most politically charged cases in recent history. That's why she didn't disclose her relationship with the ACLU. And if it weren't for the New York Times, this case woudn't have even been brought before the court to begin with.


Comments (20)

Other judicial conflicts of... (Below threshold)
mantis:
"Regrettably, it was left t... (Below threshold)
John F Not Kerry:

"Regrettably, it was left to a conservative group, Judicial Watch, to point out her role as a trustee to a foundation that had given grants to a branch of the American Civil Liberties Union, a plaintiff in the case."

Regrettably, the New York Times, with all its resources, couldn't find out about this conflict. I suspect that they knew about it but looked the other way, hoping nobody would notice. Why should we be surprised?

This is on appeal, and pres... (Below threshold)
Publicus:

This is on appeal, and presumably will end up in the Supreme Court. So, we'll just have to wait and see what happens.

mantis,Interesting... (Below threshold)
Wanderlust:

mantis,

Interesting points you raise with your links above.

Yet I do not believe your points fit this issue, IMO, for the following reasons:

* In Hamdan v Rumsfeld, Roberts was part of a three-judge panel; neither of the other two judges is mentioned in having met with anyone. Therefore, even if Roberts had dissented instead of agreeing to what was a unanimous decision, the decision would have still stood (correct me if I am wrong on this belief). So the perceived conflict of interest - in this case, a judge being interviewed for a higher job by his "employer" (the US Govt) while hearing a case brought against his employer by another party - is one that even WaPo mentions affects virtually every Federal judge sooner or later. Therefore I believe it is the responsibility of the "employer" - the federal Government - to ensure that it does not infringe upon the individual party's rights in terms of discussing promotions with its Judicial employees, as it were. I do agree that had Roberts been the sole judge in this issue, there would likely have been a clear perception of partiality in the situation. Having three judges on a panel would ensure that such situations are mitigated, provided the "employer" doesn't hold job discussions with more than one judge serving on the panel.

* In Scalia's case, I would argue that rules affecting SCOTUS judges are often very different from other judges. I would agree that Scalia probably didn't make the best choice by hanging out with Cheney the way he did, because it creates a perception of favoritism.

* However, in Diggs' case, Patterico and others have examined fairly extensively the "one step removed" connections between Diggs and the ACLU, especially in regards to a case brought recently against a group that the ACLU is representing, that Diggs was involved in funding, as I understand.

The appearance in this situation is that the ACLU went judge-shopping for someone who was involved in giving money to the ACLU through a foundation she sits on. She may not be directly involved with the ACLU, but was close enough that she should have disclosed her relationship with them, at least, when she received this case.

More importantly, though, people with much more legal knowledge than I have reviewed Diggs' judgement, and have found it lacking.

BTW, does anyone know if the ACLU raised objections to FISA under Carter or Clinton? IIRC, both Presidents reserved the Executive right to act outside of FISA if they thought it necessary to do so, and in fact did on several occasions. When they did this, did ACLU fight them?

Roberts recused himself in ... (Below threshold)
Eric:

Roberts recused himself in Hamden v. Rumsfeld. Mantis your example there is a bust.

That's why she didn't di... (Below threshold)
jpe:

That's why she didn't disclose her relationship with the ACLU.

She wouldn't have had to recuse herself, so that can't be the reason. The reason, probably, is that she didn't even know the ACLU was granted that money. It's very, very common to have high-falutin' folks on a board of directors that don't even come to the meetings. They're on the board because it helps the image of the organization to have famous person X or political figure Y, and it's understood that they won't attend many meetings.

To claim that the judge must've had a hand in the decision to fund the ACLU, or even must've known about the funding, is just stupid.

Mantis, since you obviously... (Below threshold)
Eric:

Mantis, since you obviously believe that Scalia should have recused himself because of his friendship with Dick Cheney, in Cheney v. USDC, does that opinion also extend toward Stephen Breyer and Al Gore in Bush v. Gore?

Al Gore and Stephen Breyer are close friends too.

JPE said: "The reason, p... (Below threshold)
Eric:

JPE said: "The reason, probably, is that she didn't even know the ACLU was granted that money. It's very, very common to have high-falutin' folks on a board of directors that don't even come to the meetings."

I disagree for two reasons.

1) You are speculating that she didn't know. “The Foundation’s trustees make all funding decisions at meetings held on a quarterly basis.” Now support your position that she didn't know. What evidence do you have to show that she was unaware that the Foundation she was a trustee of donated money over two years to the ACLU. Since I expect you have no actual evidence, you can't say that was PROBABLY the reason she didn't disclose it.

2) She was one of the trustees and the Secretary of the foundation. It doesn't matter if she were paying attention or skipped every meeting of the board. She was on the board and so she is responsible for the decisions made by the board. Basically ignorance is no excuse.

The organization has over 6... (Below threshold)
jpe:

The organization has over 60 board members; they grant around 12 million dollars a year (what percentage of that is 45k?); and they have a professional grant staff. Here's how these orgs usually work: the grant person/staff provides a list, and submits it to the BoD (per the org's docs, only 1/3 need to be present for a quorom), which rubberstamps the list. They're not going to go over the list line-by-line, unless there's a materially significant grant.

Of course, it's logically possible that Taylor is the most scrupulous board of director in the history of the universe, and actually read the list and objected to those she found unworthy, but in no possible universe is it even remotely likely.

It doesn't matter if she... (Below threshold)
jpe:

It doesn't matter if she were paying attention or skipped every meeting of the board.

A conflict of interest is only a problem if the person is aware of the interest at stake. It'd be a strange C.o.I if if the conflicted person were aware of neither the conflict nor the interest.

Mantis, since you obviou... (Below threshold)
mantis:

Mantis, since you obviously believe that Scalia should have recused himself because of his friendship with Dick Cheney, in Cheney v. USDC, does that opinion also extend toward Stephen Breyer and Al Gore in Bush v. Gore?

Yes, it does.

However I wouldn't say that it is obvious that I believe Scalia should have recused himself. I was just pointing out some other possible conflicts of interest people may be interested in (ignoring). I don't find them particularly relevant, however, as I don't think there is a conflict of interest in the Diggs/NSA case in the first place. Here's why.

Some perspective:t... (Below threshold)
jpe:

Some perspective:

the in '04, the org gave over $23 million to over one thousand organizations.

If anyone thinks that she could remember one of those 1,000 groups, they're insane.

Wouldn't the attorneys for ... (Below threshold)

Wouldn't the attorneys for the ACLU be ethically required to disclose the conflict, even if the judge failed to?


Two things: the grant doesn... (Below threshold)
jpe:

Two things: the grant doesn't rise to the level of conflict, so it really didn't have to be disclosed. Second, if the litigant was the ACLU, it would have no way of knowing that the Mich chapter got a small grant from an org on whose board the judge sits.

"Wouldn't the attorneys ... (Below threshold)
Lee:

"Wouldn't the attorneys for the ACLU be ethically required to disclose the conflict, even if the judge failed to?"

I can't imagine a situation where Judge Taylor isn't required to disclose (and we know for a fact that she isn't required to do so) but the attorneys are required to disclose.

Also, your question presupposes that the attorneys were aware that Taylor was a trustee of a foundation that donated to the ACLU, and that hasn't been shown. I imagine that this branch of the ACLU receives money from hundreds if not thousands of donors.


So a stock broker touting a... (Below threshold)
Red Fog:

So a stock broker touting a stock without disclosing some minute ownership through a fund with less than 1% of that stock as a part of ownership or a high level politician with any knowledge of his stock portfolio while in office is oh so culpable but, lo, the mighty judge or lawyer gets a pass because they're too important not to know about donations made by the organization on whose board they sit? She's guilty as charged no matter how you legal hawks try to dice it. Even the NYT has acknowledged her culpability. The New ... York...Times. She's as guilty as that judge caught with a penis pump.

Red, there are usually proc... (Below threshold)
jpe:

Red, there are usually procedures in place to catch conflicts of interest that wouldn't ordinarily be remembered. Law firms, for instance, have large databases of clients, and ya run down the list when you pick up a new client. I'm sure brokers and politicians have similar procedures in place. In those cases, there's a reasonable expectation that potential conflicts would be brought to the attention of the person involved.

On the important University... (Below threshold)
robert:

On the important University of Michigan admissions policy case(s), the current SCOTUS standard, Taylor wrote the opinion for the undergraduate policy while her husband was a Regent of the school.

Even jpe cannot claim that she didn't know where her husband works.

Not only that but she tried to expand her control of the case to include the Law School policy as well, with tactics described by her fellow judges as: "irregular, improper and unfit".

You gotta hand it to the NY... (Below threshold)
Thor-Zone:

You gotta hand it to the NY Times. What nerve.

jpe,Law firms, ... (Below threshold)
Red Fog:

jpe,

Law firms, for instance, have large databases of clients, and ya run down the list when you pick up a new client. I'm sure brokers and politicians have similar procedures in place.

Thanks jpe for stating the obvious and missing my point. I run down such a list every day for cases of zero import to the world. It's part of the game in business, law, politics. Judge Taylor weighs in on a political tsunami despite the conflict of interest that I would imagine she and her staff either were aware of or just ignored. It's interesting that she sits on a board that would be bound to create the conflict in her line of work. Maybe she's just plain stupid like Jimmy Carter.




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