I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Wednesday, August 23, 2006

Bush supporters develop sudden interest, expertise in judicial ethical rules

Bush supporters have suddenly developed -- literally overnight -- a profound and noble interest in the judicial ethical rules governing conflicts of interest. They're all experts on these rules now and most (though not all) have shockingly decided that Judge Anna Diggs Taylor acted improperly by ruling on the NSA case even though she is a Trustee of an organization that donated money to the ACLU (which means she is a corrupt person, which means that her ruling was wrong, which shows that the Commander-in-Chief did nothing wrong). Experts in judicial ethics are making clear that this was hardly an arrangement requiring recusal, but at worst, should have been disclosed.

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).

To defend Scalia's decision to rule on his friend's case, Matthew Frank wrote in National Review that a judge should be recused only when there is a conflict of interest -- meaning an actual personal interest in the outcome of the case:

The crucial concept animating most of its examples involving relationships with litigants is interest — as in conflict of.

It cannot reasonably be contended that Scalia has an interest in the outcome of Cheney's case. What does it matter to him whether the vice president is required to disclose the inner workings of the energy task force? To borrow a Jeffersonian expression, it neither picks his pocket nor breaks his leg if Cheney loses — or wins.

Frank also argued:

The judicial code says that "a judge should not allow family, social, or other relationships to influence judicial conduct or judgment." Note that this language does not forbid a judge to have a social relationship with a litigant, nor require him to recuse himself if he does have one — only to prevent such a relationship from influencing his judgment.

The argument that Taylor should have disclosed this arrangement is plausible (though the argument that she should have recused herself is not). It is always best for judges to err on the side of excess disclosure, and I can't say that I would be indifferent to the relationship if I were a litigant in a case before her against the ACLU. But judges have professional relationships of all sorts with litigants and lawyers before them, and it goes without saying that Taylor had far less of an "interest" in the outcome of this case than Scalia had in the outcome of the lawsuit against his friend. Yet many of those who will now pretend to be so-very-concerned over the important rules of judicial ethics vigorously defended Scalia back then, needless to say.

Paul at Powerline claimed that those calling for Scalia's recusal were "unable to find legal or historical precedent to support its position." National Review also published an article by Richard Rotunda defending Scalia, which argued that "Judges do not divorce themselves from the world when they don their robes. They still are allowed to have friends, go on hunting trips, and live a life." A Wall St. Journal Editorial angrily defended Scalia, denounced the calls for recusal as an "attempt at intimidating the Supreme Court," and warned "the Supreme Court is already enough of a political flashpoint without drawing it into the partisan ethics wars."

Ever since she ruled that the Commander-in-Chief acted illegally, Judge Taylor has been the target of all sorts of vicious and stupid personal attacks intended to discredit the ruling. The ink on the decision was barely dry when she was already widely demonized as a stupid old black woman appointed by Jimmy Carter. How revolting that someone like that can make decisions about such towering national security matters.

Did you know that her first husband committed crimes after they were divorced (a fact I learned on the day of the ruling from one of Instapundit's favorite "news" sources)? And I learned yesterday from that towering intellect, Ann Althouse, that Judge Taylor is "barely literate."

That's all this little outburst is, of course -- the latest prong in the effort to throw as much personal bile as possible at Judge Taylor in order to undermine her ruling and to distract attention from the fact that we have a President who has seized the power to break the law. 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.

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