Other liberal scholars were more candid. Yale's Jack Balkin said Taylor's opinion "has so many holes in it" that "the plaintiffs will have to relitigate the entire matter" on appeal. Still, Balkin rejoiced over the decision, reducing the case to a political question where judicial reasoning was less important.
An additional embarrassment for liberal scholars was a discovery by Judicial Watch, the conservative watchdog organization, that Taylor was on ethical thin ice. She is listed as secretary and trustee of the Community Foundation for Southeastern Michigan, deciding its financial grants. They included $125,000 to the American Civil Liberties Union (ACLU), which was one of the plaintiffs in the NSA suit.
That might seem an obvious conflict of interest, but the canons of conduct for federal judges are unclear as to whether Taylor was in violation. Liberal scholars, quick to claim conflict of interest by Justice Antonin Scalia on far less evidence, gave Taylor the benefit of the doubt. Her ACLU ties, said New York University's Stephen Gillers, would not "raise reasonable questions about her partiality on the issue of warrantless wiretapping." Gillers conceded, however, that she should have disclosed the connection "because it avoids suspicion later."
Why did the Justice Department not try to disqualify Taylor? Administration sources told me the president's lawyers were unaware of her ACLU connection. But career lawyers at Justice may have just been avoiding trouble with the federal bench.
The overriding question is how Anna Diggs Taylor was able to seize a constitutional issue. In The Wall Street Journal this week, Circuit Judge Richard A. Posner noted delegating a national security issue "to a randomly selected member of the federal judiciary's corps of almost 700 district judges." The Detroit judgment contributed to Posner's conclusion that "we do not have a coherent political dimension to our efforts to combat terrorism." Judge Taylor's farce made that clear.