Exactly one week ago, in a post entitled Judicial Ethics in the Gulf: Judge Feldman’s Conflicts and DOJ Malpractice, I related the patently obvious, and disqualifying, statutory ethical conflicts on the part of the Federal judge in the Eastern District of Louisiana, Martin Feldman, who made the curious and shocking decision to stay enforcement of the Obama Administration’s six month deepwater moratorium. As I pointed out, it legally was somewhat astounding the government did not raise Feldman’s conflict at any opportunity:
With this knowledge in the public sphere at least substantially by the night after Feldman’s decision, the government nevertheless did not even mention it as a ground in their attempt to stay Feldman’s ruling at the district court level when they filed their motion to stay at the district court level late the following day. That motion was in front of Feldman himself, so maybe you could rationalize the government not raising it at that point (although I would have posed the motion to stay to the chief judge for the district and included the conflict as grounds for relief were it me).
Having predictably received no relief in their lame request for stay from Feldman, the judge who had just hammered them (not surprising), the government put their tails between their legs and made preparations to seek a stay from the 5th Circuit. Surely the government would forcefully argue the glaringly obvious egregious appearance of both conflict and lack of impartiality once they were free of Feldman and in the Fifth Circuit, right? No, no they didn’t.
When the government filed their motion for stay in the 5th Circuit mid to late day Friday June 25, a full three days after getting hammered by oiled up Judge Feldman, and after Feldman’s most recent 2009 financial disclosure had even started being released to the general public (as evidenced by the literally damning piece on it Rachel Maddow did Friday night), the government STILL did not avail themselves of the glaringly obvious argument of conflict by Feldman. Nary a peep from the fine lawyers at the DOJ on one of the most stunningly obvious arguments of judicial bias in recent memory.
Another week later, and there STILL is no peep from the government on an issue that would be critical to reinstating their moratorium if they really wanted to. But while the government lawyers refuse to zealously litigate the position they claim to support, intervenors represented a by law school clinic professor and two lawyers for environmental groups have done the work the government should have done. On Friday June 2, Defendant-Intervenors filed a Motion to Disqualify Feldman in the district trial court and properly noticed the record at the 5th Circuit.
From the D-I Motion to Disqualify:
Pursuant to 28 U.S.C. § 455, Defendant-Intervenors Defenders of Wildlife, Sierra Club, Florida Wildlife Federation, Center for Biological Diversity, and Natural Resources Defense Council (collectively “Defenders”) respectfully move this Court to disqualify itself from Continue reading