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Wednesday, August 23, 2006

The ACLU & ethically challenged judge = danger to America

Judge shopping? I heard on the radio that the ACLU considered nine different venues for their filing. But here is something:

Finding a Friendly Court Is Not So Easy

PLANNING a legal battle on a big constitutional case would seem to have little in common with making a real estate decision, but any lawyer will tell you that often the same thing matters in both arenas: location.

When lawyers at the American Civil Liberties Union were deciding where to file their case against the Bush administration’s policy of wiretapping the international communications of some Americans without a court warrant, they chose Detroit, more specifically the United States District Court there. And last week a judge on that court, Anna Diggs Taylor, ruled that eavesdropping on telephone and Internet communications “without benefit of warrant or other judicial approval” violated the First and Fourth Amendments to the Constitution.

No one has said that filing the same case elsewhere would have led to a different outcome. Nor do lawyers generally claim that where a case is filed determines how a judge will dispose of it. After all, justice is supposed to be blind, guided only by the facts presented and the law.

That’s a howler! Of course the ACLU looked for the forum, and probably even the judge, that gave them the best chance to be gifted with at least a lower court win. The practice of forum shopping, of course, is not unique to the ACLU. I can say with a fair amount of confidence that “everyone does it” as a matter of legal strategy when the opportunity exists, so I am not criticizing them for it. They did what they thought they needed to do to win, so good on them. But one of their justifications is a bit weak:
Read the rest here.

Judge Taylor Who Struck Down Wiretap Case Accused Of Conflict Of Interest

Wow! This case just took an interesting twist! Conservative non-partisan (correction by Sister Toldjah) Watchdog group, Judicial Watch, is accusing US District Judge Anna Diggs Taylor, who sided with the ACLU in their case against the government over NSA wiretaps, of failing to recuse herself in spite of a conflict of interest.

Judicial Watch, the public interest group that investigates and prosecutes government corruption and judicial abuse, announced today that Judge Anna Diggs Taylor, who last week ruled the government’s warrantless wiretapping program unconstitutional, serves as a Secretary and Trustee for a foundation that donated funds to the ACLU of Michigan, a plaintiff in the case (ACLU et. al v. National Security Agency). Judicial Watch discovered the potential conflict of interest after reviewing Judge Diggs Taylor’s financial disclosure statements.

According to her 2003 and 2004 financial disclosure statements, Judge Diggs Taylor served as Secretary and Trustee for the Community Foundation for Southeastern Michigan (CFSEM). She was reelected to this position in June 2005. The official CFSEM website states that the foundation made a “recent grant” of $45,000 over two years to the American Civil Liberties Union (ACLU) of Michigan, a plaintiff in the wiretapping case. Judge Diggs Taylor sided with the ACLU of Michigan in her recent decision.

According to the CFSEM website, “The Foundation’s trustees make all funding decisions at meetings held on a quarterly basis.”

“This potential conflict of interest merits serious investigation,” said Judicial Watch President Tom Fitton. “If Judge Diggs Taylor failed to disclose this link to a plaintiff in a case before her court, it would certainly call into question her judgment.”
Read the whole thing here.

More on Diggs-Taylor — no stranger to ethical violations

I sense a pattern here…

Yesterday, I posted a NY Times piece on forum shopping and was lambasted on another blog for suggesting the possibility that the ACLU may have had an inside angle in securing not only the venue, but possibly even the judge they knew would give them a good shot at beginning this TSP litigation with a favorable decision. As Jay reported earlier, Judicial Watch is on the case about what looks like pretty strong evidence that there was more than a little game of footsies going on behind the robes — in the NSA case and another ongoing case in which much coin is being passed around. This makes my “dead horse beating” look even more plausible. Further evidence about this judge’s past makes this even more of one those “things that make you go hmmmm…” As others have reported, this judge has a pretty damning rap sheet when it comes to dishonoring her post while getting freaky-deeky with the left-wing political machine (what else is there but dishonor on the Left?).

From Opinion Journal back in ‘02: Disorder in the Court

Earlier, Chief Judge Anna Diggs Taylor of the federal District Court in Detroit tried to take the suit against the law school away from Judge Bernard Freedman, who had been assigned it through a blind draw–and who was suspected of being skeptical about affirmative action–and consolidate it with a similar suit against the university’s undergraduate admissions practice, which Judge Patrick Duggan was hearing. The chief judge dropped that effort was dropped after the judge hearing the law school complaint went public with a blistering opinion objecting to what he termed “the highly irregular” effort of the chief judge. Judge Duggan ruled in favor of the undergraduate racial preferences, while Judge Freedman ruled against the law school preferences.

More from University of Michigan:

Given the attention paid to this issue, it is curious that a highly unusual procedural maneuver by the Chief Judge of the United States District Court for the Eastern District of Michigan, Southern Division, Judge Anna Diggs Taylor, has to this author’ knowledge gone entirely unreported. This maneuver has been described in an opinion by another judge in the same district and division, District Judge Bernard Friedman, as a violat(ion) of her legal and ethical duty.


The U-M’s lawyers faced a further problem. Chief Judge Taylor is married to University of Michigan Regent S. Martin Taylor. Thus there is a potential conflict of interest, since, as regent, Mr. Taylor is a Defendant in both suits. Judge Taylor recognized this and recused herself, pursuant to 28 U.S.C. Sec. 455. According to Judge Friedman’s opinion, Judge Taylor had two lawful procedures she could then follow to select a judge to rule on the assignment question. She could follow a federal statute (28 U.S.C. Sec. 136(e)) and select the district judge (in the district) who is next in precedence, that is, she could designate the next most senior judge serving in the U.S. District Court for the Eastern District of Michigan, Southern Division. Alternately according to Friedman’s opinion, if she determined that the federal statute did not apply she could follow Local Rules 83.11(a)(1) and 83.11(d)(1) and use a random method to select a judge from the district to decide the matter. Neither procedure allows a recused Chief District Judge to influence a matter by personally selecting the judges who decide the question. Why not? According to a legal treatise concerning 28 U.S.C. Sec. 455 which is quoted by Judge Friedman “this would violate the statutory command that the disqualified judge be removed from all participation in the case and might create suspicion that the disqualified judge will select a successor whose views are consonant with his own. ”

Yet, this is precisely what Judge Taylor did. Having disqualified herself, Judge Taylor then named a two-judge panel of Judges John Feikens and Julian Abele Cook, Jr. to decide the issues in the U-M?s motion. According to Judge Friedman, it was in this action that Judge Taylor ?violated her legal and ethical duty by selecting the legal officers who were to act in her stead.
Finish it here.

Judge Taylor was appointed by none other than Jimmy Carter, yes, another reason why Carter may wind up as my "Worst President of the 20th Century." Let's just say that he is the front-runner!


chaos_engineer said...

I wouldn't get too worked up over the decision. It would have gotten appealed either way and it's eventually going to reach the Supreme Court. Actually we should just be grateful that the judge issued a ruling so quickly. The faster this gets through the courts, the less of our tax money will be wasted.

Question: Did we ever figure out why Bush wanted to make himself vulnerable to an ACLU lawsuit?

I mean, we've got that nice FISA court that's allowed to issue secret warrants. Bush could have gotten some of those and the terrorists would never have been the wiser.

But instead Bush decided to bypass FISA and do warrantless wiretaps. Some strict constuctionist found out about it and decided that the Constitution was being violated. (That's a controversial but perfectly valid viewpoint.) Believing he had knowledge of government wrongdoing, he had a moral obligation to speak out. As an unfortunate side effect, the terrorists know that their phone calls are being monitored.

Thanks again, George! Sheesh! Way to make us safer!

radar said...

See the post above this one!