New at Reason

David Weigel | August 23, 2006

Jacob Sullum gives the Bush administration an idea for how to deal with the NSA wiretapping decision: as a lesson.

Comments

|8.23.06 @ 5:40AM|#

Lesson: Next time get your own judge on the bench, it worked for the ACLU.

|8.23.06 @ 6:33AM|#

Jonah Goldberg is trying to say Serenity is a conservative movie? The movie where the rag-tag bunch is avoiding security checkpoints, flagrantly avoiding customs checks and engaging in human trafficking while
smuggling/broadcasting state secrets in an effort to embarrass the heavy-handed government?

|8.23.06 @ 10:13AM|#

Now that liberals have something to disagree with the Constitution is imputably inflexible and cannot take into account any changes in circumstance or technology. It is nice to see them come over to the originalist side. If only the ignorant, totalitarian bastards would do the same when comes to other things like free speech and equal protection.

For the record I would love to see Reason's response if a evangelical judge had written as poorly reasoned and overtly results oriented decision as this one overturning gay marriage or medical marijuana. I am thinking the judge wouldn't be such a hero on the pages of reason. I don't expect Reason to agree with the NSA program, but they ought to be able to see a poorly reasoned ideoligically driven decision even if they agree with the outcome. The fact that they can't or refuse to do so reflects very poorly on the staff and the magazine. I expect more from a magazine than I do from the crazy lady at the laundrymat.

|8.23.06 @ 10:44AM|#

Breaking News: Bush defenders disagree with judicial ruling, attack judge as "activist," "ideological," and "insane."

Nearly identical arguments and insults appear simultaneously in different conservative publications.

More on this entirely unique development which has never before been seen in history as information becomes available.

|8.23.06 @ 11:10AM|#

Bago said:

Jonah Goldberg is trying to say Serenity is a conservative movie? The movie where the rag-tag bunch is avoiding security checkpoints, flagrantly avoiding customs checks and engaging in human trafficking while
smuggling/broadcasting state secrets in an effort to embarrass the heavy-handed government?

I can't figure out what this has to do with the discussion but could you give me help in locating where Goldberg says this? I looked on his article posted on NRO this morning and didn't find it. Thanks,

|8.23.06 @ 11:11AM|#

Joe,

You can agree with the decision and think it is poorly reasoned and badly written. That great Neocon Lawrence Tribe came out and said as much yesterday. The decision is an embarassment even to its defenders. Now it turns out that the judge sits on the board of trustees to a group which gave 180K to one of the plaintiffs in the case. Conflict of interest perhaps?

|8.23.06 @ 11:19AM|#

The woman sits on the board of trustees of a group that doles out tens of thousands of dollars to the ACLU, and then rules in their favor.

The surprising thing is not that she is called onto the carpet for this from many different quarters, it's that some still choose to ignore this matter.

Just because every news channel's weather report says it's sunny out doesn't mean they are conspiring to hide the rain. Sometimes it's just not raining.

|8.23.06 @ 12:01PM|#

"The woman sits on the board of trustees of a group that doles out tens of thousands of dollars to the ACLU, and then rules in their favor. The surprising thing is not that she is called onto the carpet for this from many different quarters, it's that some still choose to ignore this matter."

It's being ignored because she's one trustee on a panel that awards grants and other funds to dozens of different non-profit entities every year. Judges are under no obligation to live in hermetically sealed bubbles. Unless a judge has a personal interest in a case, such as being a first order relative or business partner of a litigant, or a direct financial interest in the outcome, there's nothing that requires recusal.

|8.23.06 @ 12:50PM|#

SR.

Lets look at the code of ethics for federal judges. It says in pertinant part:

CANON 2
A JUDGE SHOULD AVOID
IMPROPRIETY AND THE APPEARANCE
OF IMPROPRIETY IN ALL ACTIVITIES



A. A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

B. A judge should not allow family, social, or other relationships to influence judicial conduct or judgment. A judge should not lend the prestige of the judicial office to advance the private interests of others; nor convey or permit others to convey the impression that they are in a special position to influence the judge. A judge should not testify voluntarily as a character witness.

C. A judge should not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin.

COMMENTARY



Canon 2A. Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly. The prohibition against behaving with impropriety or the appearance of impropriety applies to both the professional and personal conduct of a judge. Because it is not practicable to list all prohibited acts, the proscription is necessarily cast in general terms that extend to conduct by judges that is harmful although not specifically mentioned in the Code. Actual improprieties under this standard include violations of law, court rules or other specific provisions of this Code. The test for appearance of impropriety is whether the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired. "


Judges, unlike lawyers, kind of are supposed to be hermetically sealed. This woman is the trustee of an organization in the business of funding groups like the ACLU. She should recused herself.

|8.23.06 @ 1:29PM|#

Sullum wrote:At bottom, though, Bush does not think he needs permission. Given that attitude, Taylor's declaration that "there are no hereditary Kings in America and no powers not created by the Constitution" strikes me not as rhetorical excess but as a much-needed civics lesson for the president.

Indeed, and if you will pardon my shameless link to to my own post -- at Inactivist, where Alex ne Thoreau now also blogs -- taking issue with Jeff Taylor on that very point (among other people and issues I address). Judge Taylor�s rhetoric about kings is not uncommon from "the best" jurists, and is also accurately applied to Bush.

|8.23.06 @ 1:59PM|#

"Judges, unlike lawyers, kind of are supposed to be hermetically sealed. This woman is the trustee of an organization in the business of funding groups like the ACLU. She should recused herself."

The standard as you quote is "whether the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired." (emphasis added)

It's an objective test, not an "I didn't like the result, so let's find something to carp about" test. If this conflict of interest was so grave, why didn't the DOJ file a motion for recusal?

|8.23.06 @ 2:00PM|#

If the administration doesn't like it, it never should have published a legal justification for its actions. The President did confirm its existance on national TV. Hasn't the Administration argued in the Libby case that the President (or Vice-prez) can declassify something just by deciding talking about it?

It is my understanding that FISA has provisions for wartime. Congress's AUF does not supercede it unless it is specifically written to, which it was not.

I wonder what the appellet court will say, and I'm betting it will make it to the SCOTUS.

|8.23.06 @ 3:06PM|#

Here From fark. Not exactly on topic, but WTF worthy at least.

|8.23.06 @ 3:10PM|#

Here.

|8.23.06 @ 3:36PM|#

"The standard as you quote is "whether the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired." (emphasis added)"

Objectively if you are head of an organization thta routinely gives large amounts of money to a plaintiff organization before your court, you probably ought not to be deciding the case. You can say its not duck all you want SR, but that doesn't stop it from quacking and you know as well as I do that if the roles were reversed and this judge had ruled on something you didn't like in favor of a religous group that she had given large sums of money to, you would be having a fit and rightly so.

|8.23.06 @ 3:42PM|#

If her decision was reach because the ACLU gave her money, then why did she only give them a partial victory? She only ruled in their favor on 1 out of 2 issues.

|8.23.06 @ 4:26PM|#

Thanks for the link Bago. I am not familiar with Jonah Goldberg, but while he seems to have Mal's philosophy nailed down, he doesn't seem to have any clue what label to ascribe to it. Mal is certainly no conservative.