Judicial Attack

The New York Times editorial board tut-tuts Judge Anna Diggs Taylor for not disclosing that she had an indirect link to the ACLU, one of the plaintiffs in the NSA wiretapping case she ruled on last week.

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.

The foundation in question — the Community Foundation for Southeastern Michigan — is a large charity that gives out grants to a broad range of organizations engaged in community activity, including some regularly involved in litigation. The $125,000 in grant money directed to the state A.C.L.U. office over several years was for educational programs concerning issues unrelated to the wiretapping case, like racial profiling. While the judge clearly erred in not disclosing this involvement, it wouldn’t seem, based on the known facts, to rise to the level of a conflict of interest reasonably requiring that she recuse herself from hearing the case under existing ethics rules.

Of course the righties are all over this, gleefully accusing the judge of a conflict of interest and that she should have recused herself from the case. But as Glenn Greenwald points out, the righties were dismissive of such calls in another high-profile case, and as far as they're concerned, it only applies when the ruling goes against you.

To illuminate what is really going on here, let us note the fact that the same crowd attacking Taylor now was quite dismissive over a far more serious and corrupt "conflict of interest" -- the fact that Supreme Court Justice Antonin Scalia went on an intimate little hunting trip with Vice President Dick Cheney just weeks after the U.S. Supreme Court decided to accept an appeal in the lawsuit in which Vice President Cheney had been sued for his failure to reveal facts surrounding the Energy Task Force. Cheney never disclosed his hunting excursion, nor did Scalia. Instead, the parties discovered this only when The Los Angeles Times learned of it and then reported it.

As the Washington Post reported at the time, "some legal ethicists and dozens of newspaper editorials have called on Scalia to stay out of the case." But Cheney's good friend and hunting buddy refused to recuse himself, and he then proceeded to vote in favor of his good friend in that case by joining an aggressively pro-Cheney dissent written by Clarence Thomas and joined by nobody else (not even then-Chief Justice William Rehnquist).

Somebody really needs to give these people a seminar in Irony and How to Recognize It.

It's pretty clear what's going on here; the administration can't come back with a coherent defense to the fact that the president blatantly and obviously violated the FISA law and several Constitutional amendments, so insead they launch into the one thing they're best at: vicious attempts to destroy the judge who issued the ruling. The blather and personal attacks that have come down in the last week are breathtaking in their scope of childish rants, up to and including the judicial equivalent of "You're ugly and your momma dresses you funny." As Mr. Greenwald notes, "Look at any individual over the last five years who has prominently and aggressively criticized the Leader, and see if you can find one who has not been the target of vicious, personal assaults designed to destroy their reputation and credibility."