A Question of Impartiality

No Conflict on Interest Here; Civic Engagement Should Be Praised

The politics of personal destruction have become the politics of judicial destruction. The new conflict of interest allegations against federal Judge Anna Diggs Taylor are wrong and can cause serious mischief if allowed to stand.

Judge Taylor, of the Eastern District of Michigan, received national attention this month when she held in favor of the ACLU finding that a National Security Agency wiretap program was illegal and must be halted. Key parts of the decision, on standing to sue and government secrecy, have stood up well to scrutiny. Other parts, including some of constitutional analysis, have received sharp criticism from legal scholars.

It did not take long, however, for attention to shift away from the serious business of whether wiretapping without a warrant is legal. Days after the decision came down, the conservative group Judicial Watch headlined its Web page with “Judge in government wiretapping case may have conflict of interest.” Many major media outlets picked up the story. Conservative blogs stepped up the rhetoric, such as accusing the judge of “playing footsie” with the ACLU.

Judge Taylor’s actual disclosure report, meanwhile, is a model of civic virtue. For the most recent year, Judge Taylor received no gifts or outside income. Investments were in diversified mutual funds. She has served as a trustee for the Detroit Institute of Arts and the Henry Ford Medical System. Judicial canons of ethics allow and encourage this sort of participation in nonprofit civic organizations.

She was also a trustee and secretary for the Southeastern Michigan Community Foundation. Like other community foundations, this group’s grants resemble a diversified mutual fund. Projects span “arts and culture, education, health, human services, civic affairs, neighborhood and regional economic development, workforce development, and environment and land use.” Judge Taylor is one of more than 50 civic leaders who serve as trustees.

Judicial Watch ignores the diversified portfolio of public service. Instead, it focuses on a $45,000 grant to the ACLU of Michigan from one sub-initiative of the foundation, called Project Hope. Judicial Watch criticizes “this link to a plaintiff” in the wiretap case. Critics have seized on this “five-figure” grant to the liberal ACLU, claiming bias and the appearance of impropriety.

The amount and nature of the grant, however, show that the concerns are misguided. Over the past two years, the foundation has provided grants of about $50 million, and funding to the ACLU was less than one one-thousandth of funding during the period. The Hope Project has its own Grants Committee of civic leaders to screen proposals, and Judge Taylor is not on that committee. Instead, she and the other 50 trustees approve long lists of grants at the foundation’s quarterly meetings.

As for any political tilt in the foundation’s activities, it is true that Project Hope funds projects for the gay community, a “liberal” cause. There is no subject-matter link, however, between Project Hope and any wiretap or surveillance issue. Moreover, Project Hope is included in the long list of foundation efforts next to “conservative” projects, such as economic development efforts sponsored by business leaders Bank One, Comerica and the Detroit Auto Dealers Association.

So where is the conflict? Most conflict of interest problems arise when the judge receives a benefit from an individual or organization. This problem is compounded in the many states where judges are elected.

The cost of running for judicial office has skyrocketed in recent years, including in Ohio, where I teach. We should have serious concerns when a campaign donor appears before the judge. Another area for concern is where judges and their families are flown to resorts for “educational” programs, such as the controversial anti-environmental programs sponsored by the Foundation for Research on Economics and the Environment.

In the wiretap case, the judge received nothing at all from the ACLU. She gave none of her own money to that organization. At most, the judge appears guilty of committing public service. She donated her time and energy to the foundation, to support a wide range of charitable organizations.

This kind of civic engagement is exactly the right thing to have, both for the judges and for society.

Politically motivated attacks on judges will chill such participation. While it is fair game to criticize a legal decision on legal grounds, it is not fair to sling mud at a judge when she is enriching the charitable life of her community. The bench and bar should speak up for civic participation, and eschew the politics of judicial destruction.

“That Judge Anna Diggs Taylor has ties, through a community group, to a plaintiff in this high-visibility case is information that the other parties and the public deserved to know.”Chicago Tribune editorial

“At most, the judge appears guilty of committing public service.”Peter Swire, Legal ethics teacher at Ohio State University

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Peter Swire

Senior Fellow