August 23, 2006

Conflict of interest?

The New York Times reports that Anna Diggs Taylor, the federal judge who ruled that the Bush administration's NSA spy program was unconstitutional, "is a trustee and an officer of a group that has given at least $125,000 to the American Civil Liberties Union in Michigan."

Why is this a big deal? Because the national ACLU (including its Michigan chapter) was the group that brought the NSA suit! But, not surprisingly (as James Taranto notes), the legal ethicists whom the Times asks for opinions on this matter don't think it's all that big a deal. Take one Stephen Gillers of New York University who says (my emphasis)

"The question is whether her impartiality might reasonably be questioned, and the fact that she sits on the board of a group that gives money to the plaintiff for an otherwise unrelated endeavor would not in my mind raise reasonable questions about her partiality on the issue of warrantless wiretapping."

Of course, Gillers had a completely different take on the issue when it came to Justice Antonin Scalia back in 2004 (emphasis mine):

Scalia's opinion also claims that the appeal is not really about Cheney, who is sued only in his "official capacity," but about the power of the Vice President and the meaning of complex statutes. Ignored is the fact that rejection of the appeal can hurt Cheney politically in an election year if the secret records reveal a pro-industry bias in Cheney's leadership of the study group. That may also explain why Cheney stonewalled the nonpartisan General Accounting Office when it asked him for the same information.

An opposing argument could reveal these and other flaws in Scalia's logic and might well persuade a disinterested judge to reach a contrary conclusion. Judges have been disqualified for much less.

Gillers was disappointed then (the High Court ruled in Cheney's favor 7-2) and I will bet he'll be so again when the Sixth Circuit overturns Diggs' decision and the SCOTUS upholds the Sixth's decision on the inevitable appeal.

Posted by Hube at August 23, 2006 07:12 PM | TrackBack

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