When you can't attack the legal statement, attack the person making it?

Question

A group has come forward, trying to say that the federal judge who ruled that the NSA wiretapping program was illegal should never have heard the case. Their argument is that the judge is a board member for a non-profit charitable group (Community Foundation -- www.cfsem.org) that made a donation to one ACLU chapter to promote gay rights. A different chapter of the ACLU was involved as legal counsel in the warrantless wiretapping case. The group making the claim admits that the judge wasn't ever actually directly involved with the plaintiff chapter, but argues that it might create the appearance of impropriety.

http://news.findlaw.com/ap/o/632/08-23-2006/9251000e5dbfa0d8.html

So, the question: is this just a tactic to discredit the judge because she ruled against the government, or do you think this represents a sufficient actual conflict of interest that she should be retroactively removed from the case?

Hoyamilton and Mephistoph -- good arguments, and good cite. So, read the rule. She did not herself contribute to or work for a party. She worked for a group that gave money to another group (on an unrelated issue) that was affiliated with a party. So, it's three steps between her and the party not just one. Does that make a difference? How close is too close, and how far is far enough?

Bharris44 -- You're right. It's a separation of powers issue. And the constituttional mandate of the judicial branch is to determine if a law or action is legal or not. Or are you saying that any actions taken by the executive branch are automatically beyond the scope of legal review?

Answer 1

Sir, my feelings on the ruling and its importance in preservation of constitutional rights aside, I feel that the judge overstepped her bounds. It seems the judge is really pushing the limits of the ABA Judicial Code of Conduct, Canon 4. Though it seems that there is sufficient LEGAL distance between her and the donation, it just doesn't "feel" right. Thus, I think that while the attackers may be politically motivated, they also have a point (sadly).

One could argue that it is similar conduct to what Judge Boyle in North Carolina is accused of (purchasing mutual fund w/ company as major holding when that company was before him in a suit, I think).

Answer 2

The ACLU, a national organization, chose the chapter to file the suit with purpose. That judge has been known for her liberal views. The ACLU shopped the courts for the judge most likely to side with them.

That doesn't make the ACLU bad by the way, its a strategy used very often by the federal government as well (thats why Moussaoui was tried in Virginia where the death penalty was possible).

However, back to the question, before impropriety could be considered you would have to know her extent of activity in the decision making process of the group. Very often the board of directors of non-profits are really figureheads that don't have much say in the operation of the organization. Frequently their position is more directly related to their ability to raise funds for the group then their ability to lead it. In other cases the directors of a non-profit merely rubber stamp the decisions of the paid staff.

I would think her level of activity in the decision for the charity to donate to an ACLU group would be necessary before the step of setting aside her finding. Judges don't live in a bubble and casual contact with outside influences can't be held against them for every decision made. (If they own a car does that mean they can't hear a case involving the automobile industry?)

In this case the government was the victim of judge-shopping instead of the instigator of it. It will be overturned on appeal. I predict the Supreme Court decides in favor of the program 6-3.

Answer 3

Federal Judges generally try very hard to avoid the appearance of impropriety. The reason is more because they want to stay on the bench and hopefully get promoted (appointed) to better (higher) courts. Even if there is a appearance of impropriety, it generally won't influence the outcome of a case unless a party can prove actual prejudice. The appelate Court will decide if the trial judge abused her discretion, rather than trying to decide whether or not there was an actual conflict.

This situation appears to be just an attempt to discredit the judge in the public's eye.

Answer 4

I think "they" are attacking her, because they made a decision that "they" don't agree with. However, I believe she set herself up for this kind of treatment. It's unfortunate, but if her ruling would have been more professional and less political ("we have no herediatry kings...") I would be horribly upset that people are going after her. Instead she wrote a poor ruling that even law professers that believe the NSA program to be illegal are condemning. She knew she had to be cleaner and rock solid with an issue this "hot". She failed to do this. She made a couple of obvious political statements in her ruling (along with several mistakes in form) which resulted in 1. An easier way to overturn the ruling and 2. Opening herself up to serious criticism and more talk about "activist judges".

So I guess what I'm saying is that I think they're out to get her, but she is half responsible for the dogs that are nipping at her heals.

Answer 5

It is a rule of natural justice that a Judge should not be biased or have the appearance of being biased. If the Judge has any connection to the parties in the case she should excuse herself. A similar case happened in England with Lord Hoffman who heard a case when he was on the Board of a party involved in the case. The judgment was reversed and heard again. There should be no cause for any party to claim lack of independence of the Judge.

Answer 6

I notice that in Canon 4, under (C) (3), "A judge may serve as an officer, director, trustee or non-legal advisor of an organization or governmental agency devoted to the improvement of the law." Apparently the value of an experienced judge in this helpful role is explicitly recognized.

The organization he served with did not come before the court; they were only involved in what I'm sure they felt was "improvement of law" activities in providing support to a legal advocacy group.

So I fall into the camp that sees no conflict. The connection is remote and the Canon appears to provide for, and even encourage, service of the type provided by judge.

Answer 7

In my opinion your attempt at separation is flawed and therefor your point is moot.As a board member she had a vote asto where the org.would make contributions.The ACLU as an org. does not split it's overall aims and goals. This is where the appearance of impropriety plays out.Also she did not take precedence of the case into account.Even the "liberal" 9th Federal Judicial Circuit court has ruled in favor of the NSA actions,among others.In as much as that,she has sided with the ACLU and should recuse herself from this case.

Answer 8

I really think that the judge should have recused himself. There is no reason for him to take a case that is giving the legal counsel against the state. It was irresponsible of him to do so. He may have been sure he could make a difference with the case, wanted the spotlight of a high profile case, OR thought himself able to keep a clean head anyway. But it looks dirty, so he shouldn't have done it.

Answer 9

Actually, no federal judge should have been allowed to rule on it. It's a matter of the separation of powers.

And, the personal attack technique has been around forever. It's not something new that the Bush administration created.

Answer 10

It does come across as a lay up for the government to discredit the validity of the ruling. The government knows it is doing something illegal and therefore does not want to face the consequences...and how is that done? By shifting the blame to keep everyone distracted fromthe truth. typical Karl Rove technique. Thanks for the link provided in your question.