There ain’t no need to stop and wonder why, babe…
August 27th, 2006 | by Craig R. Harmon |Why what? Why the ACLU chose Detroit where Judge Taylor sits as opposed to, well, somewhere else. It has been discovered that Judge Taylor is Secretary and Trustee for a foundation that has given $125,000 or more to the Michigan ACLU. That brings up questions of conflict of interest that at a minimum should have been disclosed and perhaps should have been cause for her to recuse herself, being that the ACLU was council for the plaintiff in her recent, laughably lame ACLU v. NSA ruling. Previously I had just thought that they chose her district because they deemed her suitably likely to crank out a judicial finding in their favor. I had no idea she was indirectly financally tied to them. To quote this Chicago Tribune article:
“A judge brings many talents and qualities to the bench, but two are essential: honesty and impartiality. Judge Taylor’s honesty has not been questioned, but her impartiality surely has.“
24 Responses to “There ain’t no need to stop and wonder why, babe…”
By ken grandlund on Aug 28, 2006 | Reply
While I agree that impartiality is a necessity for any judicial role, I think that another judge could have ruled similarly on this case and found the governments actions illegal. That this judge has ties to the ACLU may diminish her credibility personally, but does it necessarily diminish the validity of her ruling?
Judges are people too, with political views and political connections. Why not assume that she can separate her personal politics from the case at hand? Isn’t that what the right wants us to assume about the two most recent Supreme Court justices? That even though they hold personal views that run contrary to current law (on issues like abortion for instance) that they will make assessments of cases based on established law and unbiased reasoning?
While I understand you disagree with her ruling, can you prove that her affiliation with the ACLU is the foremost factor in her ruling?
By Craig R. Harmon on Aug 28, 2006 | Reply
Ken,
Hi! Long time and all.
“I think that another judge could have ruled similarly on this case and found the governments actions illegal.”
I agree. While I disagree with Judge Taylor’s conclusions, it is mostly with the lameness of her argument. I’m not a legal expert. I’ve read arguments that range from “it’s illegal and unconstitutional” to “it’s likely illegal but not unconstitutional” to “it’s both legal and constitutional” and these from legal experts who present plausible arguments for each of these positions. I have my opinion but freely admit that I could be wrong so no, it doesn’t necessarily diminish the validity of her ruling.
On the other hand, this post wasn’t about the validity of her ruling it was about the appearance and possibility of real impropriety. I would be more willing to assume that she is able to separate her politics from the case at hand if her ruling read more like a legal ruling and less like a political screed. I mean, honestly, Ken, have you read the thing? Does it read like any legal ruling you’ve ever read? I mean, there are no shortage of judges who rule on the basis of their prefered outcome so Judge Taylor’s ruling is not a surprise in that regard. What is truly surprising is that most judges pretty up their judicial activism with plausible sounding legal arguments. Judge Taylor couldn’t, apparently, be bothered. Her legal arguments amount to, in much of her ruling, “This is unconstitutional…because I say so.” She hasn’t bothered to even hang the window-dressing to pretty up her activism.
I cannot prove that her affiliation with the ACLU is the foremost factor in her ruling but I don’t think that’s the standard. The standard is, and always has been, the appearance of impropriety. This ruling has the stench of impropriety all over it but as a matter of fact, in my post I was fairly careful to be limited in my claims.
For example, I did not claim impropriety in the post but, rather, that this discovery “brings up questions of conflict of interest that at a minimum should have been disclosed and perhaps should have been cause for her to recuse herself”. Since I haven’t claimed that her affiliation was the foremost factor in her ruling, I don’t have to prove that it was.
By ken grandlund on Aug 28, 2006 | Reply
Fair enough Craig, and no, I haven’t read the entire ruling she handed down.
However, “Her legal arguments amount to, in much of her ruling, ‘This is unconstitutional…because I say so.’” sounds suspiciously like the opposing point of view put forth by the Decider. Good enough for the goose and all that…
Of course, my own position on the NSA wiretaps is that they are extra-legal at best and unconstitutional at worst, and further, that there is little valid reason for the administration to desire blanket powers to listen in on all communications going into or out of the country without making use of the laws requiring a warrant, even those allowing them to secure one after the fact. That the administration has refused to accept such limited requirements is what should give all of us pause to wonder at their full motivations.
But I will agree with you that judicial impartiality, including the appearance of such, is of tantamount importance to our judicial system.
By Craig R. Harmon on Aug 28, 2006 | Reply
Ken,
“…sounds suspiciously like the opposing point of view put forth by the Decider.
Um. Have you read the DoJ’s defense of the legality and constitutionality of the NSA program? It hardly amounts to “because I said so”. It may be that their arguments will not come out on top in the end but arguments they are.
By Jersey McJones on Aug 28, 2006 | Reply
I read the ruling when it was handed down. It’s actually a quick read, which may have something to do with some of the critique it’s gotten. But I can’t find anything wrong with the rulings. I think that there are some ctritics who are simply trying to look smart and prescient by saying “Oh, this ruling was poorly constructed” while in reality they know full well that the GOP stacked appellate would overrule the law of gravity if it suited the cons. This is con sleaze, not a poor ruling.
JMJ
By Dusty on Aug 28, 2006 | Reply
According to USA today’s article: “Taylor noted on financial disclosure reports filed in 2004 and 2005 that she is a trustee and secretary of the Community Foundation for Southeastern Michigan. That group says on its website that it has given a total of $45,000 in recent years to the ACLU of Michigan for programs serving gay men and lesbians.”
The group exists to promote gay and lesbian issues..how does that clash with a wiretapping case? If you would like to view their grants here is the link to their site pdf which discloses all their recent grants.
By Craig R. Harmon on Aug 28, 2006 | Reply
Jersey,
This isn’t about some legal scholars wanting to look smart. The New York Times, after calling the ruling well grounded and studied, could not find a single scholar (do you really think the Times didn’t exhaust their rolodex of liberal ‘go-to-legal-guys’ to try to find one single dissent from the din of voices calling this ruling a laughable joke) to say that this ruling had merit in its legal reasoning?
No. It’s conclusory, circular in it’s reasoning, ignores major precedents in favor of the administration’s position and misstates the actual findings of the few precedents that it does discuss.
How does it matter how support for gay and lesbian issues relates to wire-tapping. The women is partly responsible for financial support of a regional arm of the council for the plaintiff. Even the New York Times has said that she was ethically bound to disclose the relationship at the bear minimum.
Maybe it just indicates that, well, a judge who strongly supports gay and lesbian issues is likely to also be against the NSA trying to protect our asses by intercepting international phone calls to al Qaeda terrorists. Maybe, in their close relationship between the organization and the Michigan ACLU, the ACLU discovered, because Judge Taylor opined to members of the ACLU that she hates Bush, thinks that he’s the reincarnation of King George the whatever number he was and want’s to shut down the NSA program asap and that, therefore, her court would be the place to go to present a ridiculously weak argument that would get ridiculously short shrift from the Judge in favor of the plaintiff. Now if it’s the first scenario, there’s no impropriety but she still should have revealed the relationship of cash. If it’s the latter, this is a set-up that involves collusion on the part of the plaintiffs and an unethical judge.
By ken grandlund on Aug 28, 2006 | Reply
Craig-
My statement was in reference to Bush’s assertions that he can do as he sees fit, since he is, after all, the head honcho and decider in chief. I did not intend to infer, and I did not write anything about the DOJ’s defense efforts when commenting about your claim of …”because I say so.” I think you may have missed my point.
By Craig R. Harmon on Aug 28, 2006 | Reply
Dusty,
I should have mentioned that the last two paragraphs above are in response to your comment.
By Craig R. Harmon on Aug 28, 2006 | Reply
Ken,
Cites please. I’d really like to read Bush asserting that “he can do as he sees fit”.
I don’t believe he’s said anything like that but I’m open to being proven wrong.
By ken grandlund on Aug 28, 2006 | Reply
Well, not in those words perhaps, but certainly with that intent…
Bush on the NSA wiretaps: “I have re-authorized this program more than 30 times. I intend to do so for as long as our nation faces a continuing threat from al Qaeda and related groups.”
Bush on Rumsfeld (but really pretty indicative of his perception of his role as CiC: “I hear the voices, and I read the front page, and I know the speculation. But I’m the decider, and I decide what is best.”
Bush speaking to the NSC: “I’m the Commander, see … I do not need to explain why I say things. That’s the interesting thing about being the President … [I] don’t feel like I owe anybody an explanation.”
Does this help?
By Dusty on Aug 28, 2006 | Reply
You are inferring that she can’t rule on wiretapping because she supports gay and lesbian issues?
Horseshit..
In that vein of thought we might very well say ol Deadeye Dick Cheney should stay out of all issues that involve Halliburton..which is Iraq, Afganistan and The Gulf after Katrina.I would say he is far closer to the issues I just mentioned that your stretch that her support of gay and lesbian issues would affect her judgement on a wiretapping case.
The USA Today article has a different slant that the NYT writeup evidently..its all in how you play it and the NYT is evidently trying to make their case along the same lines you are. She disclosed her affiliation with this group in 03 and 05.
By Craig R. Harmon on Aug 28, 2006 | Reply
Dusty,
No. I am stating quite explicitly that she had a monetary relationship, indirect though it may have been, with the council for a plaintiff before her and that she had an ethical responsiblilty to disclose that. I am stating quite explicitly that the fact that she did not is troubling. I’m stating quite explicitly that it raises questions of her impartiality. I have made explicit some of the troubling questions that her ethical failure raises in this case. I have not said that she could not rule in this case. I have no idea where you got that. In fact I stated in the post and repeated in a comment the following:
“That brings up questions of conflict of interest that at a minimum should have been disclosed and perhaps should have been cause for her to recuse herself, being that the ACLU was council for the plaintiff in her recent, laughably lame ACLU v. NSA ruling.”
That’s not bullshit, that’s straight out of, though not a direct quote from, several news reports, one of which I actually linked to. You see…nothing about “she can’t rule on wiretapping”.
We might in fact say that Dick Cheney should stay out of any dealing with Haliburton. In fact, let’s go ahead and say it.
As for the New York Times, it, too, finds the failure to disclose to be “disquieting” and raises questions of the sort of outside activities that judges engage in. I’m not sure what USA Today is saying about it. If you have a link, let’s see it. My link was to the Chicago Tribune.
By Craig R. Harmon on Aug 28, 2006 | Reply
Ken,
Yes, quite. The first quote is quite obviously based upon the Legal case made for the NSA program by the DoJ, which I mentioned earlier. It being in the DoJ’s opinion that the program is both legal and constitution, of course he’s going to continue to authorize it. That’s his job, to protect the country from another attack and it is not based upon some belief that he get’s to do as he pleases but upon a very extensive legal case.
On Rumsfeld, who, but the President, decides to fire a person in Rumsfeld’s position? In this specific case, he is, in fact, the decider. I disagree with his decision but I cannot find any cause to think that it is up to anybody but him to make the decision whether to keep or fire Rumsfeld. That decision, in any case, has little to do with whether the NSA program is within his legal or constitutional purview.
The final quote is quite a bit less than helpful since it is completely context free. I have no idea what it is that he feels he doesn’t need to explain. He could be talking about what toilet paper he uses for all I know (okay, unlikely but you get my point; there are things that neither he nor anyone else should feel that they need to discuss)
For the record, however, I think that Bush is probably the worst example of open governance of certainly recent history, with the possible exception of Nixon. However, on the NSA program, the DoJ has laid out an extensive, reasonable and plausible and, in my opinion, convincing case that the program that he authorized the NSA to carry out is both legal and constitutional. But even if the SCOTUS eventually declares it otherwise, it is just not true that he did it just because he thinks he can do whatever he wants. He thinks that he can engage in electronic surveillance of international phone calls and emails, one end of which is outside of the country and is suspected of being an Al Qaeda agent and he does so for the sake of national security at a time of war.
That, in my opinion, is quite a different thing from saying he thinks he can do whatever he wants.
By ken grandlund on Aug 28, 2006 | Reply
Craig- Actually, the first quote (re: the NSA program) was made by Bush in December 2005, long before the court case or the DOJ defense efforts. If anything, the DOJ case was built around that premise, and not the other way around. And while I agree that it is the job of the president to protect this country, he still has to abide by the laws of this country, and by bypassing the FISA courts, it is my (and others’) opinion that he did not comply.
The other two quotes were not in reference to the NSA program, but meant to indicate an overall mindset of George Bush to further bolster my claim that he will act in whatever manner he wants to act, legal or not. Context be damned, Bush, by his own (or at least his handlers) actions and public persona, seems to think he is some lonesome cowboy, able to do what he chooses, when he chooses, without impedence by pesky things like national laws or legal precedents.
By Craig R. Harmon on Aug 28, 2006 | Reply
Ken,
Sometimes I get so wrapped up in making an argument that I just get things all out of proportion. In this case, I missed your point even after you pointed out to me that I missed your point. I continued to miss it and made a major case out of it. You are right. Bush’s comments do, in fact, sound a lot like “because I said so.”
Sorry obout that.
By ken grandlund on Aug 28, 2006 | Reply
No worries Craig. That’s just what friendly discourse is all about. We all sometimes miss things that others are trying to say because we are looking at advancing our own points. It’s just that not all of us are open minded enough to admit to it. Kudos to you. And onward to more debate…
By Craig R. Harmon on Aug 28, 2006 | Reply
Ken,
Gracious of you. As you say, onward to more debate:
”Actually, the first quote (re: the NSA program) was made by Bush in December 2005, long before the court case or the DOJ defense efforts.”
Do you really think that the DoJ didn’t get around to making a legal case for the constitutionality and legality of the NSA program until this case hit? I’d be very surprised if starting the case making didn’t begin as soon as the program was proposed. In fact, there seems to have been evidence revealed in the same series of articles that revealed the program that there were discussions about the legalities from the very beginning. Those discussions brought about early change to the program as it had been originally instituted. I’m not sure when this case was originally brought in Detroit but the DoJ put out a 42 page case for the program’s legality dated January 19, 2006 (43 page .pdf file). It is clear that this was not knocked off over the weekend. Obviously it was not made public until the program itself had been but I imagine this is the case that was put together pretty much from the beginning.
What do you base your belief that the DoJ’s case building did not predate the December 2005 statement by Bush? In fact, the link that you provided to that statement of Bush says: “Bush said such authorization is “fully consistent” with his “constitutional responsibilities and authorities.” ” Which authorities do you suppose he was referring to if not the AUMF and multiple precedential (not “presidential”) rulings discussed in the DoJ paper linked in the previous paragraph? I guess it’s possible that Bush was blowing smoke while the DoJ, for the first time, put together a case that plausibly covers what the President had ordered four years before but I think the evidence is against that.
By Dusty on Aug 28, 2006 | Reply
Well, Dead-eye Dick won’t be laying off Halliburton for those grand no-bid contracts anytime within the next two years and I still won’t buy that Diggs was biased..its a mute point as one article I read pointed out..its going to the appeals court where it all will see the light of day..
have a good evening Craig, I had a cortisone shot today and this the limit of my sitting time..reading my emails and jousting with you :)
By Craig R. Harmon on Aug 28, 2006 | Reply
Dusty,
Had joust about as much as you can stand?
By Dusty on Aug 28, 2006 | Reply
only has much as my body can take Craig..I have been told I would argue with a tree stump..so I really have to be hurting to walk away from THIS one.
By Craig R. Harmon on Aug 28, 2006 | Reply
Dusty,
What you need is one of those eye-wear computers that we see on tv where the monitor shows on the lenses of one’s glasses and, in lieu of a keyboard, it is voice activated and controled. That way you could compute every waking moment of every day…
I’m pathetic sometimes!
By Dusty on Aug 28, 2006 | Reply
Craig..I almost do post every single minute I am awake,its the only comfortable chair in the house, my computer chair..seriously..have a good Tuesday Craig, gotta lay down dammit.
By Craig R. Harmon on Aug 29, 2006 | Reply
Dusty,
Anyone can argue a tree stump. Tree stumps don’t argue back!