As a follow-up to Matt’s post, I offer some thoughts on whether Judge Taylor should have recused herself from the NSA case—and on the judgments of supposed legal ethics experts on this question:
1. Here are the relevant facts, according to the New York Times article: (a) Judge Taylor is on the board of trustees of the Community Foundation for Southeastern Michigan, which provides grants to various nonprofit organizations. From 1999 to 2002, the board awarded at least four grants, totaling at least $125,000 to the Michigan ACLU, for projects involving the Bill of Rights, racial profiling, and gay rights. Taylor evidently was on the board of trustees during this time. (b) The Michigan ACLU was a plaintiff in the NSA case before Judge Taylor.
2. Stephen Gillers, an oft-quoted professor at New York University, has opined that the fact that Judge Taylor “sits on the board of a group that gives money to the plaintiff for an otherwise unrelated endeavor would not in my mind raise reasonable questions about her partiality on the issue of warrantless wiretapping.” Let’s consider this question.
Back in the old days, before it became fashionable for liberal judges and academics to indulge their policy preferences, a person with a well-trained legal mind would examine whether his policy preferences were infecting his judgment by considering some analogous hypotheticals. Assume, for example, that a judge sat on the board of a foundation that in recent years had given various grants to a conservative group for projects involving promotion of the Pledge of Allegiance, defense of marriage, and opposition to embryo-destructive stem-cell research. If that conservative group was a party in a lawsuit in the judge’s court involving, say, the constitutionality of abortion regulations, should the judge recuse herself?
I don’t have a ready answer to this question, but it would seem to me that the question would require far more serious consideration than Gillers appears to have given the question of Judge Taylor’s recusal. This is the same Gillers, as it happens, who, in the midst of the Roberts confirmation process, offered the badly flawed opinion that Roberts, as a D.C. Circuit judge, should have recused himself from the Hamdan case because “the public can never know” how the prospect of a Supreme Court nomination might have affected his thinking. The same Gillers who recklessly opined that Justice Scalia’s participation in a legal seminar sponsored by a group that does not litigate raised serious ethical concerns. The same Gillers who, in advice that other ethics gurus questioned, advised Justice Breyer that Breyer could take part in a case presenting the question whether the sentencing guidelines are constitutional, notwithstanding Breyer’s own extensive involvement in creating the guidelines. Anyone notice a pattern?
3. The three legal ethicists interviewed by the New York Times—Gillers, Steven Lubet of Northwestern, and Deborah Rhode of Stanford—all opined that Judge Taylor should have disclosed her indirect connection to the Michigan ACLU. From the way their comments are presented, the reader is left to conclude that disclosure would have cured any problem. But, under the applicable law, disclosure alone is irrelevant. Under 28 U.S.C. 455(e), where the ground for disqualification arises only under subsection 455(a) (recusal where “impartiality might reasonably be questioned”), the parties may waive disqualification if their waiver “is preceded by a full disclosure on the record of the basis for disqualification.” In other words, if recusal would otherwise have been required under 455(a), full disclosure would merely have enabled the parties to decide whether to waive Judge Taylor’s recusal.
4. The New York Times oddly finds newsworthy the assertion of the Michigan ACLU’s executive director that judges “have not recused themselves when there’s been a much, much stronger connection to an organization.” Judicial practice under the applicable rules would certainly be worth addressing, but what possible reason is there to think that the Michigan ACLU’s executive director is knowledgeable about this practice? Or should we read the assertion as a troubling signal that judges with even closer ties to the ACLU have failed to recuse themselves from cases involving the ACLU?