So Judge Anna Diggs Taylor sereved as the trustee of an organization that funded the ACLU Michigan — one of the plaintiffs in the NSA case. The New York Times reported the story on Tuesday; yesterday the Times published an equivocal editorial on the subject. In the NSA case, however, the scandal is not one of appearances; it is one of substance. The scandal is Judge Diggs’s unprofessional opinion. The opinion is a joke; it wouldn’t cut it as a law school paper.
At the time the opinion was issued, Paul recalled the judge-shopping shenanigans Judge Taylor had committeed in the University of Michigan affirmative action cases. Our friend Kirk Kolbo was the lead attorney representing the plaintiffs against the University of Michigan (the Gratz case) and the University of Michigan Law School (the Grutter case). Kirk writes to remind us of the details:
Judge Taylor was the Chief Judge of the Eastern District when the University of Michigan in 1998 sought to have the law school case reassigned from Judge Friedman to Judge Duggan [who had been assigned the Gratz case]. Judge Taylor recused herself because she was married to a member of the University of Michigan Board of Regents. But she then appointed a two-judge panel (how strange is that?) to hear the motion for reassignment. That panel ruled over our objection that the case should be reassigned to Judge Duggan. Judge Friedman, however, concluded that the whole process by which the reassignment was being attempted was invalid and he refused to accept the decision. He kept the case and wrote a rather stinging opinion explaining why. I heard this all created quite a stir at the time in the courthouse. Interestingly, Judge Friedman is now the Chief Judge of the Eastern District.
Kirk dug out a copy of Judge Friedman’s August 17, 1998 opinion and order regarding the reassignment issue, and it is devastating. As to Judge Taylor’s role in the action, Judge Friedman found that Judge Taylor had herself violated federal law (28 U.S.C. § 136(e)) in designating the two judges to rule on the defendants’ motion after she recused herself from hearing it; he concluded that she “violated her legal and ethical duty by selecting the judicial officers who were to act in her stead.”
Judge Friedman further noted that Judge Taylor’s impropriety was compounded by her assignment of the issue to a two-judge panel; Judge Friedman’s research disclosed no instance in which a two-judge panel had ever been convened by a district court. Judge Friedman concluded on this score as well “that Judge Taylor acted without authority when she reassigned…defendants’ motion to a hand-picked, two judge panel.”
Finally, Judge Friedman found that Judge Taylor’s conduct had “tarnishe[d] the court’s appearance of fairness and appeare[d] to place the court’s imprimatur on a judge-shopping practice which we, collectively as a bench, in the past always have denounced.” It’s an opinion that sheds light on the peculiar waywardness of Judge Taylor’s NSA decision.