Topic: Professions & Institutions

Apparent Bias in the Wiretap Opinion

It is a shame that conservative watchdog groups never seem to detect misconduct by conservatives, and liberal watchdog groups are blind to the transgressions of liberals. The persistent bias on the parts of both varieties of political whistleblowers makes it difficult to trust their integrity. Still, focused as they are on only one side of the political spectrum, they can perform a useful public service.

Judicial Watch just did one by alerting the media that Anna Diggs Taylor, the federal judge who ruled last week that President Bush’s anti-terror warrantless eavesdropping program was unconstitutional, is a trustee and officer of a group that has given $125,000 to the American Civil Liberties Union in Michigan. The website for the Community Foundation for Southeastern Michigan in Detroit lists Judge Taylor as its secretary and a trustee. It also says that trustees make the grant decisions for the organization, whose assets exceed $350 million and which gives contributions for a variety of community projects.

Was this a conflict of interest for Taylor, whose language in condemning the administration’s program had a decidedly ideological tone? A federal law requires judges to disqualify themselves from presiding over a case if their impartiality “might reasonably be questioned” based on factors like a financial or personal relationship with a party. This federal law, it must be said, is seldom followed by federal judges, who tend to use a more subjective standard: if they believe that they can be impartial, public opinion be damned. A champion of this arrogant approach has been Supreme Court Justice Antonin Scalia, who has pointedly refused to recuse himself in cases where either his prior statements (such as on the rights of suspected terrorists) or personal relationships (as with his infamous duck hunt with Vice President Cheney) would suggest to some that he was not approaching some issues with an open mind. That does not mean that he has necessarily been right to not recuse. In the Scoreboard’s judgement, Scalia has often chosen stubbornness over propriety, and it also concludes that Taylor made the wrong call. She had an apparent conflict, in an important and controversial case. She should have recused.

Most legal ethics scholars, at least the ones consulted by the press, have sided with Taylor. Then again, most legal ethics scholars tend to be biased in the same direction as the judge. Stephen Gillers, for example, an NYU legal ethics professor who is always ready to find fault with conservative judges like Scalia, said he did not think there were grounds for Judge Taylor to remove herself from the case. “The question is whether her impartiality might reasonably be questioned,” Professor Gillers told the New York Times, “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.”

All in all, an astounding statement. The A.C.L.U. is a mission-driven organization, and a foundation that gives generously to such an organization can be assumed to generally support its mission, which is to guard against any government incursions on the Bill of Rights. Whether or not the contributions to the A.C.L.U. that Taylor presumably approved involved the same specific matter or not, the generous support could be reasonably interpreted as indicating agreement with the A.C.L.U.’s philosophy, of which opposing the government’s anti-terrorism wiretapping is a natural extension. Would it be reasonable for the U.S. government to question whether its arguments in support of the program received a fair hearing from such a judge? Gillers says no!

A blatant example of bias defending bias. Meanwhile, the A.C.L.U.’s defense of the partisan judge consisted of a wholesale rationalization. The executive director of the Michigan A.C.L.U., Kary Moss, argued that “judges have not recused themselves when there’s been a much, much stronger connection to an organization.” Well, to be blunt, so what? Because other judges don’t always recuse themselves when they should, Judge Taylor can ignore her duty to avoid the appearance of a conflict? That is a non-argument.

All the ethics experts consulted by the New York Times for its story, even Gillers, agreed that Taylor was wrong not to have at least disclosed her potential conflict. The problem she would have encountered if she had, however, is that her Constitutional absolutist rhetoric in the opinion would have immediately prompted her critics to dismiss it as the manifesto of an A.C.L.U. partisan. And that is exactly why she needed to recuse herself.

Her significant involvement with an A.C.L.U. supporting foundation undermines the force, persuasiveness and integrity of Taylor’s’ opinion, regardless of its merits.

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