The ACLU and forum shopping in NSA case

Posted on August 21, 2006

Nice piece in the NY Times today:
Finding a Friendly Court Is Not So Easy

PLANNING a legal battle on a big constitutional case would seem to have little in common with making a real estate decision, but any lawyer will tell you that often the same thing matters in both arenas: location.

When lawyers at the American Civil Liberties Union were deciding where to file their case against the Bush administration’s policy of wiretapping the international communications of some Americans without a court warrant, they chose Detroit, more specifically the United States District Court there. And last week a judge on that court, Anna Diggs Taylor, ruled that eavesdropping on telephone and Internet communications “without benefit of warrant or other judicial approval” violated the First and Fourth Amendments to the Constitution.

No one has said that filing the same case elsewhere would have led to a different outcome. Nor do lawyers generally claim that where a case is filed determines how a judge will dispose of it. After all, justice is supposed to be blind, guided only by the facts presented and the law.

That’s a howler! Of course the ACLU looked for the forum, and probably even the judge, that gave them the best chance to be gifted with at least a lower court win. The practice of forum shopping, of course, is not unique to the ACLU. I can say with a fair amount of confidence that “everyone does it” as a matter of legal strategy when the opportunity exists, so I am not criticizing them for it. They did what they thought they needed to do to win, so good on them. But one of their justifications is a bit weak:

Jameel Jaffer, counsel for the A.C.L.U. in the eavesdropping case, said there were two reasons Michigan was selected. “The last time the Supreme Court considered the constitutionality of warrantless surveillance was a case that came out of the Sixth Circuit,” Mr. Jaffer said, referring to the Sixth Circuit Court of Appeals, which will hear the government’s appeal of Judge Taylor’s decision. “The other reason we filed in Michigan is because many of our clients are in Michigan.” This case is a little unusual, Mr. Jaffer added, because the lawyers who brought it fully expect the decision by Judge Taylor, who was appointed by President Jimmy Carter, to be reviewed not just by an appellate court but also by the Supreme Court. In a simpler, more typical case that did not involve broad constitutional principles but basic issues of fact — a slip-and-fall case, for example — a district court decision could well have the last word.

I’m guessing that the forum was chosen before the clients were, so Mr. Jaffer is probably not being completely forthright here. The major organizations represented all have offices in DC, so I’m sure clients would have been as easy to find in what would seem like a more appropriate venue.

Though trial lawyers say they must think about where to file, the idea of “forum-shopping” to find the most favorable courthouse has a bad name — perhaps in part because it conjures up images of slick plaintiffs’ lawyers filing absurd claims in obscure courthouses where juries will give them multimillion-dollar verdicts.

“There’s a pejorative connotation,” said Michael E. Rosman, general counsel at the Center for Individual Rights, a conservative organization in Washington specializing in civil rights cases. “The idea is, if you really had a strong case, you could sue anywhere.”

Scholars differ over how exactly judges decide cases before them, Mr. Shaffer said. “There are those who believe it’s just a matter of human bias and human instinct.”

To talk about whether different courts decide cases differently is to begin a complicated discussion that can challenge notions of fundamental fairness, he continued. If the same facts, presented to different judges in different courts can lead to different outcomes, then can anyone maintain confidence that a particular outcome was just?

Yes, in a perfect world, the law would always be clear, judges would always be ideology-free and cotton candy would be free on every street corner in every flavor and even sugar-free…But in the real world, it makes sense for smart attorneys to do this.

This reminds me to recommend a new book: Mark W. Smith’s Disrobed. I agree with him what the problem is, but I don’t agree with all of his conclusions and advice, but nonetheless it does provide an interesting look at how the judicial system really works today.

In the eavesdropping case, Mr. Jaffer said that deciding where to file was less important than knowing where the case will end up. “Ultimately,” he said, “it will be the Supreme Court.”

Mr. Jaffer is fibbing a little here again. Of course they wanted to begin with a win (as sloppy as this one was) and not an appeal, so of course the first step was vital to the case.

» Filed Under ACLU, Border Control/Homeland Security, News, War On Terror


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One Response to “The ACLU and forum shopping in NSA case”

  1. L. Fafarman on August 25th, 2006 12:01 am

    I think it is more an issue of “perceived bias” rather than “conflict of interest.” I think that the term “conflict of interest” should be restricted to situations where a judge actually stands to benefit financially, where the judge is an officer or a member of an organization that is a party to the case, or where the judge is a relative or a close personal friend of a party. It would be difficult or impossible to eliminate all perceived biases — for example, Associate Justice Ginsburg was once an attorney for the ACLU. As for Judge Taylor, I think that the perceived bias would still be there if the donation to the ACLU had occurred before she became a judge rather than after. However, I think that to minimize the possibility of a perceived bias, a newly appointed judge should immediately quit all positions and all memberships that are likely to generate a perceived bias. What if, for example, Judge Taylor had ruled the other way in ACLU v. NSA and it was then disclosed that she had approved a donation to StoptheACLU? There was no good reason at all for her to be an officer of that organization that donated to the ACLU. To the maximum extent possible, a judge — like Caesar’s wife — should be above suspicion. At the very least, Taylor should have disclosed the ACLU connection at the start of the trial in order to avoid the possibility of future problems concerning the connection.

    I think that one of the reasons why Detroit was chosen as a venue is that the Detroit area — notably Dearborn — has a large population of people of Arab descent, who are the most likely people to be affected by the ruling.

    I think there is a good possibility, though, that this judge was handpicked with the assistance of an insider in the office of the court clerk. As a pro se litigant, I have seen a lot of collusion in the courts.

    Bigoted Ed “It’s My Way or the Highway” Brayton has again displayed his usual inability to see both sides of a story — his article on this subject is titled, “Silly Accusations Against Judge Taylor.” See http://scienceblogs.com/dispatches/2006/08/silly_accusations_against_judg_1.php

    I would like to post these comments on Ed’s blog too, but I am permanently banned there because he did not like my literal interpretation of a federal court rule.