Judicial Ethics in the Gulf: Judge Feldman’s Conflicts and DOJ Malpractice

Last week Federal district court judge Matin Feldman of the Eastern District of Louisiana (EDLA), in what has become a controversial decision, overturned the six month moratorium on deepwater oil drilling imposed by the Department of the Interior. It was a legally curious decision to start with as it, on its face, appeared to be contrary to the well established standard of review.

Almost immediately from the time Judge Feldman’s decision hit the public conscience, information on Feldman’s undisclosed (at least on the case record at issue) financial ties to the oil and gas exploration industry started coming out of the woodwork. From Saturday’s Washington Post:

The federal judge who presided over a challenge to the Obama administration’s six-month moratorium on deepwater oil drilling simultaneously owned stock in an oil company affected by the ban, according to a financial disclosure statement released Friday.

U.S. District Judge Martin L.C. Feldman sold the stock in Exxon Mobil 14 days after the case was filed in New Orleans by a group of oil service firms — and less than five hours before he struck down the moratorium.

Feldman said in a statement elaborating on the disclosure that he was unaware of his holdings in Exxon Mobil and a smaller oil company until 9:45 p.m. Monday, the day before he issued his ruling.

“Because he remembered that Exxon, who was not a party litigant in the moratorium case, nevertheless had one of the 33 rigs in the Gulf, the judge instructed his broker to sell Exxon and XTO [Energy Inc.] as soon as the market opened the next morning,” according to a statement released by his chambers and reported by Bloomberg News.

Even before this latest disclosure, Feldman was criticized by environmental groups and others for not recusing himself from the case. The groups pointed to his 2008 disclosure form, which showed that he had invested in companies involved in offshore oil and gas exploration.

So Judge Feldman not only held numerous oil and gas interest stocks, but was trading them up to and including the morning of his fateful decision, and doing so out of an admitted realization that he had an appearance of ethical conflict. Feldman owned and was trading Exxon stock, a company whose Gulf of Mexico rigs were losing money at the rate of a half million dollars a day due to the moratorium, during the entire time he was assigned the case. Yet, failing to disclose his appearance of conflict on the record or recuse, Feldman nevertheless proceeded to issue a questionable decision clearly benefitting the oil and exploration industry he is so invested in.

Lest there be any confusion that perhaps Judge Feldman somehow put himself in the clear by suddenly selling off his holdings in Exxon on the morning of June 22 just hours before issuing his surprising opinion contrary to normal standards of review for such issues, keep in mind the subject case of Hornbeck Offshore Services et. al v. Salazar had been assigned to Feldman for two weeks and, significantly, the adversarial hearing the opinion resulted from actually occurred the day prior, June 21, while Feldman obviously still held the stock even he considered an ethical issue.

Even more distressing is the fact that it has now been revealed from Judge Feldman’s 2009 financial disclosure, literally just filed and only released this week after demand resulting from his questionable ruling, that Feldman is very heavily invested in Blackrock Financial products. Blackrock is, of course, the single biggest shareholder in BP. As the New York Times put it:

No single institution has more money riding on BP than BlackRock, the money management firm that is BP’s largest shareholder.

Well that certainly sounds like reason to pause, eh? There are two sources of guidance for federal judges such as Feldman in instances like this, the statutory guidance of 28 USC 455 and the Code of Conduct for United States Judges contained within the Guide to Judiciary Policy of the US Courts. Both sets of provisions yield the same guidance, so I will focus on the statutory provision as it is more specific and would appear to take precedence; 28 USC 455 provides inter alia:

(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:

(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;
(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;
(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;
(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

(i) Is a party to the proceeding, or an officer, director, or trustee of a party;
(ii) Is acting as a lawyer in the proceeding;
(iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;
(iv) Is to the judge’s knowledge likely to be a material witness in the proceeding.
(c) A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household.
(d) For the purposes of this section the following words or phrases shall have the meaning indicated:
(1) “proceeding” includes pretrial, trial, appellate review, or other stages of litigation;
(2) the degree of relationship is calculated according to the civil law system;
(3) “fiduciary” includes such relationships as executor, administrator, trustee, and guardian;
(4) “financial interest” means ownership of a legal or equitable interest, however small, or a relationship as director, adviser, or other active participant in the affairs of a party, except that:
(i) Ownership in a mutual or common investment fund that holds securities is not a “financial interest” in such securities unless the judge participates in the management of the fund;
(ii) An office in an educational, religious, charitable, fraternal, or civic organization is not a “financial interest” in securities held by the organization;
(iii) The proprietary interest of a policyholder in a mutual insurance company, of a depositor in a mutual savings association, or a similar proprietary interest, is a “financial interest” in the organization only if the outcome of the proceeding could substantially affect the value of the interest;
(iv) Ownership of government securities is a “financial interest” in the issuer only if the outcome of the proceeding could substantially affect the value of the securities.
(Emphasis added).

A comparison of the strictures of 28 USC 455, especially those I have highlighted, with the conduct of Judge Martin Feldman cannot lead to any conclusion other than Judge Feldman has acted in violation of his ethical obligations. The standard under 28 USC 455 is recusal if there is even a question regarding the appearance of impartiality. Common practice in Federal courts dictates that, even where there are underlying facts that may mitigate a judge’s duty to recuse, there is an affirmative duty imposed on the judge to disclose and explain on the record.

The evidence to date is that Judge Feldman neither recused nor disclosed and, in fact, was surreptitiously scurrying around selling interests after two weeks of having the case, and a day after presiding over the crucial hearing in the matter, in some kind of attempt to cleanse himself prior to the formality of making his decision public.

Even if Feldman did not learn about his stock holding in Exxon until the last minute, which appears to be his claim, the proper course would have been to recuse or delay until full disclosure could be made and waiver by the parties obtained if they were so willing. Instead, Feldman rushed to secretly sell his stock and then slammed out his decision favoring oil interests over the judgment of the responsible administration agency and the health of the environment for the Gulf of Mexico and the planet earth. This is an atrocious and unsavory set of facts on the part of Judge Martin Feldman and goes far beyond the “appearance of impropriety or conflict”. It is hard to see how a reviewing court, in this case the 5th Circuit, could let this stand.

Which brings us to the second part of the title caption, the conduct of the government lawyers, notably the ever present DOJ. As I intimated in my initial post last Tuesday immediately after Judge Feldman’s opinion was released to the public, the public protestations to the contrary, you have to wonder whether the Obama Administration’s heart is really in defending their six month moratorium. First off, the Perry Masons at the DOJ appear to have violated one of the prime directives of trial lawyers, know your judge. If the DOJ researched Judge Feldman and knew his personal holdings in Gulf oil stocks and dependent interests, they sure did not evidence it or act accordingly. If they did not so research and know and understand Feldman’s conflicts and prejudices, they are incompetent. Either way, there is a serious cloud of questions over the government’s lawyering effort in Hornbeck Offshore Services et. al v. Salazar.

The cloud of questions was already present as of a couple of hours after Feldman issued his ruling. In addition to the aforementioned failure to know and address their judge by the DOJ, there was the issue of how the responsible lawyers for the government permitted briefing to be submitted in Interior Secretary Ken Salazar’s name misrepresenting the nature of the concurrence of the panel of seven experts that Feldman used to excoriate the government. As I explained in the earlier post linked above, that should not have been used as the basis Feldman creatively and manipulatively used it for; nevertheless it was flat out bad, if not incompetent, lawyering by the DOJ to not clean that up before arguing as their centerpiece in defending against Plaintiff Hornbeck et. al’s attack.

But from almost the second Fedman’s decision was issued, the issue of his conflicts was percolating as described above, and getting stronger and more egregious by the day. 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. Furthermore, the legal eagles at the DOJ and DOI failed to effectively address and contradict Judge Feldman’s reliance on the case of Motor Vehicle Manufacturers Association V. State Farm Insurance, 463 U. S. 29 (1983), which Feldman contorted and misapplied to wrongfully reach his result (I will likely come back to the absurdity and contorted error in Judge Feldman’s decision in this regard at a later date).

Feldman was required by both statutory and ethical considerations to recuse himself; at a absolute base minimum to disclose his appearances of conflict on the record; but he did neither. Any competent standard of lawyering would mandate the government to raise the issue if they are going to competently fight Feldman’s ruling; but they have not, and they have engaged in other consistently questionable lawyering on this case as well.

The public ought to be asking what in the world is going on here. On all fronts.

90 replies
  1. TarheelDem says:

    Do Feldman’s actions rise to the level of grounds for impeachment? Not that it is likely to happen with this Congress, but curious minds want to know.

    • bmaz says:

      Unlikely, not to mention he is rumored to be quite good friends with Chief Justice Roberts, who would be the gateway for any referral through judicial channels (I guess a House member could seek it, but I doubt it would go anywhere). It would be grounds for reprimand or censure by the 5th Circuit though; although I doubt that will occur either. All I really ask is that he get slapped down and reversed.

  2. PJEvans says:

    Feldman said in a statement elaborating on the disclosure that he was unaware of his holdings in Exxon Mobil and a smaller oil company until 9:45 p.m. Monday, the day before he issued his ruling.

    Yeah, right, he was ‘unaware’ of this.
    I know I have 250-odd shares of BofA; my statements tell me this, among other investments.
    Does Feldman ever read his statements?

  3. earlofhuntingdon says:

    The DoJ didn’t routinely inquire into the judge’s financial holdings in such a high-profile case in a part of the country where conflicts of interest seem especially rife (in light of the conflicts and corruption exposed in neighboring Alabama during the Bush administration)?

    Mr. Obama DoJ didn’t request a rehearing, recusal and transfer of the case to another judge? If not, the conclusion is that the Obama administration finds this judge’s ruling – and his conduct – wholly acceptable. A milquetoast formal appeal to the 5th is what we have here? Has the Ted Stevens team from Alaska been promoted and sent to the Gulf?

    A credible DoJ, by the way, would already have requested disciplinary hearings begin on this judge’s failure to disclose and recuse himself.

  4. Arbusto says:

    As a layman, I’d think a normal remedy for such action by a judge would be an immediate review by the full court and investigation by the supervising judge, with reprimand and recommendations for further actions as warranted. Given the sad state of our Republic though, I expect nothing to happen.

    I had a heated discussion with an Obama supporter over a camp fire this weekend. While she agreed Obama under reacted on the BP gulf scourge, she thought of Obama as a competent populist, not an Oligarch leading the Nation in favor his masters. She agreed that Congress is corrupt but thought the Supreme Court, while right of center, was not an activist and proactive court. In the movie Mars Attacks, President Dale said “I want the people to know that they still have 2 out of 3 branches of the government working for them, and that ain’t bad.” With a few judicial exceptions, we don’t even have one branch working for the citizenry.

  5. earlofhuntingdon says:

    A competent populist? That’s a laugh, although a credit to the durability of his campaign image. In office, Mr. Obama is a thoroughbred corporatist.

        • BayStateLibrul says:

          In my opinion, I don’t regard Obama as a thoroughbred corporatist. He’s more complex than that label…
          Feldman, I agree with you, should have excused himself, and taken a hike.

        • earlofhuntingdon says:

          Where has Mr. Obama’s actions, not his words, promoted non-corporatist priorities?

        • BayStateLibrul says:

          I think he is promoting legislation to overturn Citizens United.
          I think his policies promote or try to help small businesses.
          My big beef is with the term “corporatist.” It’s too broad…
          In a sense, I’m a corporatist since I work for a corporation and they pay my salary…
          We NEED fucking jobs and they come from corporations.

        • econobuzz says:

          In a sense, I’m a corporatist since I work for a corporation and they pay my salary…

          So, what’s good for your corporation is good for you?

        • BayStateLibrul says:

          No, my company is amoral, I hope I’m moral, although I’ve committed
          many sins along the way…

        • econobuzz says:

          Well, I think a handy “Cliff Notes” definition of “corporatist” is one whose policies and actions suggest strongly that he cares more about your corporation than he does about you who voted for him — or about the clients your corporation serves who voted for him.

        • BayStateLibrul says:

          I don’t feel that way. What I object to is his war policy and listening
          to Generals rather than Biden…

        • bmaz says:

          He is not doing shit about any of it. I know tons of small businessmen and represent a handful more; not a one of them has anything good to say about Obama’s policies. I do not blame them. He says he restored the banking system in order to give liquidity to small businesses and individuals and stands by preening and making speeches while the liquidity situation worsens and the banksters take all the money for themselves. Corporatist is dead on the money for what has proven to be the course of the Obama Administration. And, in case you have not noticed, Obama is not doing shit about

        • MarkH says:

          I know tons of small businessmen and represent a handful more; not a one of them has anything good to say about Obama’s policies. I do not blame them. He says he restored the banking system in order to give liquidity to small businesses and individuals and stands by preening and making speeches while the liquidity situation worsens and the banksters take all the money for themselves.

          Are you saying that all the money the Obama admin. loaned to small banks is being hoarded and doesn’t get to businesses?

          Are you saying all the stories about businesses hoarding $1 Trillion are not true and it’s the bankers who are hoarding?

        • john in sacramento says:

          Are you saying that all the money the Obama admin. loaned to small banks is being hoarded and doesn’t get to businesses?

          Don’t know about small banks, but …

          A soon-to-be released report by special inspector general Neil Barofsky finds:

          Many of the banks that got federal aid to support increased lending have instead used some of the money to make investments, repay debts or buy other banks


        • econobuzz says:

          In my opinion, I don’t regard Obama as a thoroughbred corporatist. He’s more complex than that label…

          Okay, throw in crook. Does that cover the complexity?

        • BayStateLibrul says:

          That’s a good comebacker, but I don’t think Obama is a crook, but
          Nixon and Cheney are crooks…

        • Mary says:

          I think we’d have to leave it to Jeff for the professional take, but I think Arriana is onto something about his fixated need to suck up to and be liked by the powerful and authoritative (father issue?) or, to give him the benefit of the doubt, his overly deferential take that he can trust all those “smart guys” who have powerful positions to act in good faith.

          I’m not sure that naive adds a level of complexity, though, but it does go a ways towards explaining all the hiding behind steepled fingers.

  6. fatster says:

    Corporate corruption is rampant in all three branches of government as well as much of the “Fourth Estate.” They’ve just about got it all tied up and they’ve beaten us down. And, just to make sure we stay down, the G20 participants are willing to throw us into a prolonged depression. (Of course, if they hadn’t created the economic mess we’re in, forcing us into a depression wouldn’t be necessary.)

    Thanks so much for this excellent analysis, bmaz.

  7. JohnLopresti says:

    Re EoH@6 and bmaz original post: The *know your judge* principle due diligence of the Ted Stevens evidence integrity variety might be a fit in re Feldman nonrecusal; so I agree there could have been a DOJ promotion for that unit. The tardy revelations in the Stevens matter also would be a parallel for the timing issues in the Feldman nonrecusal. Feldman might take it to the next level and put the entire portfolio in a blind trust, as is elected politicians* wont.

    Maybe we can expect HoganHartsonLovells to organize a duck blind stand populated by both Scalia and JGRoberts, as a sort of de facto recusal, at which turn the famous Vanguard Fund principle of (initial) nonrecusal developed by CAP*s own SAlito could serve as stare decisis Scotus internal policymaking, and Justice Sam could refuse to give an audience for reviewing the Feldman nonrecusal based challenge, though Alito has little seniority. It might get interesting if Justice CThomas were to be designated to review the Feldman nonrecusal matter.

  8. BoxTurtle says:

    What will the 5th do, I wonder. It’s largely a Bush court, which makes me suspect they’d really like to uphold this ruling.

    Obama and congress have many ways around this ruling, should they choose. Pass a law allowing MMS to pull drilling permits.

    Boxturtle (I suspect ObamaLLP would like to lose, after putting up a good public fight)

  9. harpie says:

    At first glance I saw:
    Judicial Ethics Gulf.

    First off, the Perry Masons at the DOJ appear to have violated one of the prime directives of trial lawyers, know your judge. If the DOJ researched Judge Feldman and knew his personal holdings in Gulf oil stocks and dependent interests, they sure did not evidence it or act accordingly.

    What are the chances that they did know, but
    a] Didn’t think it mattered, or
    b] Didn’t think people would notice?

  10. thatvisionthing says:

    Separate from the legalities, maybe drilling as much as possible now is better?

    Driveby comment here — am not up to speed on a lot of this. Did some reading offline this weekend. One of the things I read was dougr’s long estimation of what was going on with the BP well disaster, from theoildrum.com back on June 13, which had been linked to by a commenter here, I’d credit if I could remember. It’s worse than worst case, and it has a ring of sense and truth to it that I don’t get from the Obama aftermyth machine. I don’t know if dougr’s changed his mind or not since then. But basically he thinks the well cannot be capped because the well shaft is broken below (capping on top will make the break below even worse, like putting your finger over a garden hose that has a hole in it), and that the BOP is so massively heavy and the seafloor so naturally unstable that it is being held up by the well shaft. And that the well shaft break is eroding the strata it’s bored through, shaking it apart. The only hope there is of capping the well is by relief well below the break, and it’s a race against time between when the break totally fractures the seabed and the 450,000-ton BOP falls over, vs. getting the relief well in place and killing from below. Dougr doesn’t think we’re going to win that race. All in all… horrible disaster, the whole thing is going to blow like a popped balloon (my image). In which case, maybe the answer is to pump as much out NOW, via wells in place, as opposed to a moratorium? Capture the oil before it spills/relieve the pressure? I don’t know the geology of the oil in the deep sea, whether it’s like a honeycomb or sequentially-flooding watertight compartments on the Titanic or what, and if this cave in will cause other pockets to break too. Has this been covered here? Sorry to be stupid, but I really am stupid. I know others here have a far better understanding than I do.

    • PJEvans says:

      People who work in the field are saying that dougr’s post is fearmongering, and that there’s very little about it that’s reality-based.
      But it makes good ratings on television….

      The BOP is very unlikely to fall over, for one thing (it’s actually on a fairly solid base), and the top thousand feet of seabed is mud with a consistency like pudding so it isn’t going to crack or fracture.

      • thatvisionthing says:

        Has there been a discussion? I remember leaving a comment on another diary here recently about the rate of incline of the (riser/BOP?) falling pretty rapidly — so many degrees a couple of weeks ago to so many degrees now. Leaning tower of Pisa. Think that was in a Daily Kos diary that I quoted here. Have you seen that issue discussed? It’s all hearsay to me.

        • thatvisionthing says:

          This was the DK diary about the wellhead falling over:

          This is Depressing
          by slinkerwink
          Tue Jun 22, 2010 at 08:08:48 PM PDT

          ThinkProgress reports that the wellhead is potentially in danger of tilting over, due to its weight, which has near-apocalyptic ramifications for the entire ecosystem of the Gulf of Mexico [as if the oil spill itself already hasn’t done enough damage]:

        • PJEvans says:

          Oy. (I saw that one. It’s unreliable as a source of information.)
          I go read at The Oil Drum, which is relatively sane and nto given to wild speculation. No one there (outside of dougr and soem of the newbies) seems to think anything unusual is going on, and there’s the expectation that one or both of the relief wells will work.

          (Also, the BOP shouldn’t be about to fall over, because there should be less stress on it now that the bent-over riser is off.)

      • bmaz says:

        Keep in mind that those “people in the field” (I have read fairly consistently over there as well) have been consistently behind the curve as to what is really going on. They did not accept the flow rates that were fucking obviously far higher than the authorities were saying at first either. Then they did not believe there was really an issue with how fast the top kill was halted; but there was. Then they did not believe there was an issue with the general well and casing integrity; but there was and is. Now, while I agree the DougR stuff is at the extreme end and he appears to have a few facts off, I do believe things are, once again, worse off than those said experts let on; and I do believe there is cause for concern in the fact that the BOP is tilting and the tilt has gotten progressively worse from about 3 degrees to the current 12-13 degrees.

        • tjbs says:

          Worse than that, keep on it BMAZ, in the end the BOP could be the exact spot where ” the shit’s hitting the fan” in our lifetime.

          The information suppression is a ” tell.”

        • econobuzz says:

          I do believe there is cause for concern in the fact that the BOP is tilting and the tilt has gotten progressively worse from about 3 degrees to the current 12-13 degrees.

          Agree. Our concern and actions should be driven by this distinct possibility — not by the assurances of folks who have been wrong or have lied about everything.

  11. MadDog says:

    Totally OT – The complaints in the DOJ’s Russian Spy case read like one of William Gibson’s novels:

    Ten Alleged Secret Agents Arrested in the United States

    Multi-year FBI Investigation Uncovers Network in the United States Tasked with Recruiting Sources and Collecting Information for Russia…

    From pages 4-5 of Complaint # 1 (18 page PDF):


    11. To further the aims of the conspiracy, Moscow Center has arranged for the defendants clandestinely to communicate with the Russian Federation. In particular, the conspirators have used a number of methods of secret communications. See Complaint III.A. As set forth below, these include covert communications by means of private wireless networks.

    12. In general terms, covert communications via private wireless network is a form of electronic communication through paired laptop computers. Such covert communication utilizes temporary wireless networks that spring up between two computers and can be used to transmit data between them. The way this system typically works is as follows: a laptop computer (“LAPTOP A”) is pre-configured to create its own private wireless local area network. This wireless network is programmed to only communicate with another specific laptop (“LAPTOP B”), based on LAPTOP B’s Media Access Control (“MAC”) address. 2 Once LAPTOP A transmits the signal to establish its own private wireless network, it will be “joined” by LAPTOP B when LAPTOP B comes within a certain physical distance of LAPTOP A. Once the two laptop computers are both on the private wireless network, they can communicate with each other by exchanging data. The data can be encrypted so that it can only be read with the aid of specialized decryption software, similar to that used to decrypt messages hidden through steganography, as described in the Complaint attached hereto…

    • Mary says:

      ok ok you beat me and have mo betta info.

      I still like thinking of it all as Rivkin Unravelled, though.

      • MadDog says:

        The complaints are something else!

        The FBI describes a meeting with one of the “illegals” by the name of Anna Chapman with an undercover FBI person pretending to be a Russian Consulate person just this past Saturday (June 26), and she was arrested just yesterday (June 27).

    • prostratedragon says:

      Were it not that all of our lives and cultures appear to have become but the metaphorical grist for our own bamboozlement, I’d be able to disregard the resemblance of this description to bacterial conjugation.

  12. greenwarrior says:

    Obama has not returned my habeas corpus or yours. On the contrary. He’s expanded the unrule of law. This is more than a little annoying.

  13. rickg says:

    While the behavior of the judge is ridiculously compromised, the silence on that issue is deafening. Is it because the moratorium was really just for show? What was ultimately going to happen in 6 months?

    It is pretty obvious that the drilling in deep water will resume, as long ss the oil companies are so inclined. All things considered, the moratorium really looks like a dumb move. By implementing it, Obama and company sign up for the economic hit. At the end of six months, the likelihood is strong, especially with Salazar at the helm, that the whole exercise will have been “kick the can down the road.

    There are definitely a few practices that BP used with the Macondo well that are pretty clearly involved in the disaster. One is the “single string” casing, the other is the single shear BOP. Why not start issuing regulations right now that ban those two items. I am sure there are probably some other identifiable measures that would actually address the risk. More controversial would be requiring relief wells, but given the scope of the disaster, let the oil companies scream about that!

    By issuing proposed regulations, those companies that wish to comply can resume business in the shorter term. In any event, changing the dynamic from a moratorium that is more theatrics than substance and absorbing the responsibility for the economic hit on the drilling end, to one where the oil companies have it in their power to get back to business, is something that ought to be considered.

    In reality, the drilling cannot be done without great risk. That means either the moratorium needs to be permanent (won’t happen) or we need to go back to revised and regulated drilling activity. Six months isn’t going to magically make it better, especially if at the end we witness the spectacle of Salazar and BHO presiding over the wreckage of a bad idea and one that accomplished nothing!

  14. bridgettepl says:

    Justice Rehnquist would have Judge Feldman’s HEAD on a pike over this! It shows just how in the pocket Chief Justice John Roberts is in to corporate America. I hope that Justice Rehnquist haunts Roberts from the beyond.

    I grew up in the Federal court system. My father was a clerk in the Federal court system almost all my life. I respected Rehnquist even if I did not agree with him, and that man was a stickler for judicial ethics. Feldman would be wishing he was dead by the time his backside was handed to him by Rehnquist.

    • bmaz says:

      You know, I agree with that. Rehnquist was an odd duck in a way. I think even if he might have been inclined to uphold the bad decision here (and I am not sure which way he would have gone quite frankly); I really do think either way he would have been pretty offended by the lack of candor and disclosure. Excellent point.

      And I have not seen your name here before, so welcome to EW; please join us often, it is a good crowd.

      • bridgettepl says:

        Thank you. I drop by a lot, but don’t tend to comment often. I have my own site where I do most of my writing. Being a blogger is a lot more work than people tend to think. I’ve put out a total of nine today. Most are no more than 500 words.

        My fondest memory of Justice Rehnquist was his managing to keep my father’s paychecks coming when the government got shut down under Clinton. I disagreed with him a lot, but he was a good and honorable man.

        Take care, and thank you again.

        • bridgettepl says:

          The blog is Lez Get Real. I’m the primary writer for the site, but that is because I can write a lot in a day. We currently have seven writers. We do a mixture of news, entertainment, opinion and culture aimed at the LGBT Community, mostly lesbian portion of the community. Most of what we write is news. We tend to be more Moderate in tone, but that is mostly because we cover anyone who is LGBT friendly, even though we might be critical of their other work. We’ve even been nice to Bill O’Reilly at times. We’re far from willing to just be nice to Obama or anyone. Thank you for asking :)

        • bmaz says:

          Thanks, I am going to send this to a couple of people I know in the relevant community;I think they will be interested in your work.

        • bridgettepl says:

          Thank you. We do a pretty good job at LGR. Right now, though, none of us get paid a dime, we just do this for the love of changing the world for the better.

  15. Ishmael says:

    Some people do take recusal and judicial ethics seriously – note the following from the NYT article on the death of this weekend of Martin Ginsburg, husband of Justice Ruth Bader Ginsburg:

    “….Mr. Ginsburg went to great lengths to avert any questions about the couple’s finances. When Justice Ginsberg was being vetted by the Clinton White House as a prospective Supreme Court nominee, Mr. Ginsburg compiled years of financial records over a weekend. Then, in the couple’s home at the Watergate apartments in Washington, he walked government accountants through years of filings as his wife was being interviewed in another room on legal and personal issues by the president’s counsel, Bernard W. Nussbaum.

    The couple’s finances had been simplified in 1980 when Mr. Ginsburg sold all his stock so that Justice Ginsberg would not have to remove herself from cases involving companies or industries in which the family had interests.

    “I have been supportive of my wife since the beginning of time, and she has been supportive of me,” he said at the time of her Supreme Court nomination. “It’s not sacrifice; it’s family.”

    In 1997, Mr. Ginsburg said he had ordered his broker to sell all the stocks he owned in an individual retirement account after Insight, a news magazine affiliated with The Washington Times, reported that Justice Ginsburg had failed to disqualify herself from more than 20 cases involving companies represented in the account.”

    Mr. Ginsburg took the role of “Caesar’s spouse” in his private dealings, lest it compromise his spouse’s appearance of impartiality – it isn’t all that complicated, all it takes is integrity, one of the things that judges are, you know, supposed to have, at least as much as an Ivy League degree. Compare the example of the Ginsburg family integrity to Judge Feldman’s egregious (and self-admitted!) conflict of interest.

    • bmaz says:

      That little sudden sale of the Exxon stock the day after he presided over the hearing and hours (four I think) before he issued his 22 page opinion was awfully unseemly wasn’t it? I mean really. Even with the help of clerks, he did not pen a 22 page stinking opinion in the intervening four hours. And he didn’t do it the night before either. He had most of it decided and done prior to the hearing based upon his evaluation of the pleadings, then edited and put some final touches on Monday afternoon and spell checked it Tuesday morning while he was selling his Exxon stock and then made the damn thing public on the docket late Tuesday morning/early afternoon. From my experience, that is just about exactly how it had to have gone down. And it is VERY greasy.

    • prostratedragon says:

      What a moving story! I suspect Mr. Ginsberg will be missed even by those who never knew of him, but only know that something has changed …

  16. iremember54 says:

    America just won’t admit that the Law we so cherish, has been taken over by Lawyers and Judges who use it to work for themselves, and against the people.

    Most people think or know that Lawyers are lower than a snakes belly, but they can’t admit that most of our Judges are so low they could look up at a snakes belly.

    The day when our Law was there to protect and defend us is long gone, and it now defends the accused while condeming the victems. We see it in everything from cases in local courts, murder cases, and our Justice Departments handling of people who acted against laws and Constitution.
    The Supreme Court is even worse because it’s the final deciders of our rights, and how the law treats us. We saw it put Corporations above the rights of the people and the Country. It takes away our rights and gives the Government the right to do what it wants to us.

    The Congress always cries the rule of Law. The in the next breath makes laws they retract past laws. New Laws seldom are better than what the old law was, but were changed, because they didn’t like having to live under the old Law.

    Just like the Bush administration didn’t like not being able to Torture People, and having to get warrents or ask Judges before they did anything.

    Our Fabulous Law says no one that created the Economic crisis, the Housing crisis, the Banking crisis, and yes the oil spill did anything against the Law. Yet spit on the side walk, jaywalk, speed, or smoke a marjuana cigarette and You as an American Citizen are a criminal.

    The next time You say I trust our Law, and the People who are supposed to administer it, please slap your own face.

  17. TheOracle says:

    Hmmm, besides the oil-stock-soaked Feldman, I wonder how many of the DOJ lawyers also own stock in Blackrock, BP, Exxon, or any other multi-national investment firm or corporation? And what about the judges on the 5th Circuit? And let’s not leave out of this toxic oily mix justices on the U.S. Supreme Court?

    IOW, will any of the judges on the 5th Circuit reveal their financial holdings and have to recuse themselves, too, or be held in contempt of their own ethical standards, if there are any left, that is?

  18. oldgold says:

    The first half of this post is persusive. The second half of the post is less so. The comments trying to put this on Obama are nonsensical.

    • bmaz says:

      Maybe that standard of lawyering is normal for you; looks pretty substandard to me. You can draw your own conclusions as to why that may be; but there are really only two rational options to explain the government lawyers’ conduct – ignorance/incompetence or intent.

      • oldgold says:

        Well, I think the situation the government lawyers found themselves in might have been more ambiguous in real time than you do.

        • bmaz says:

          Yeah, I guess so. Because I see that they were assigned to this judge for fourteen days prior to the hearing, I know for a fact DOJ has a staff that keeps a book on the federal judges in each district and circuit and I presume they have internet toobz with the Google and what not. And then once the opinion was rendered, I had the initial information of the fucking conflict within hours; yet you find it excusable and just hunk dory that they either did not even have that information that a common little ‘ole blogger had and that had already starting hitting the mass media, or somehow saw fit to not argue it in spite of having it. Which means they are either butt ass stupid or not zealously representing the supposed goal of their client. You seem to find all that explainable though some unspecified modality; I simply do not. But then you always go out of your way to rationalize even the dumbest horseshit from this administration; I simply do not.

        • oldgold says:

          Yes, I admit to not sharing your certitude on many matters. If you would closely read my comments on this matter, you would see that I am not necessarily disagreeing with you on this point; rather, I am suggesting
          you may, with the benefit of hindsight, be judging the real time tactical decisions of these government attorneys too harshly. My guess is that the strength of their case [it is, as you have noted, damn near a lay down] dissuaded them from going after the judge.

          I do not admit to “always” going out of my “way to rationalize even the dumbest horseshit from this adminstration.” For instance, I am a constant and fierce critic of Obama’s Afghanistan “policy.”

        • Mary says:

          I don’t think you’re being as candid about what “real time” in this instance has meant. Pretty much since the oil spill began, the issue of suits involving it has been prominent and prominent in that coverage has been the coverage of recusals and the many ties of judges with the oil industry. So while the moratorium isn’t a lawsuit involving the spill, the topic of judges and recusal bc of oil company ties has been one the DOJ has had flung in their face, whether they were looking for it or not.


          But wait, hmmm, maybe this whole issue of judges, oil company ties and DOJ’s knowledge of that as a problem and issues goes back a little further? It’s not like anyone at DOJ would be paying any attention to the string of Katrina cases like Corner v. Murphy Oil where this issue has been front and center, would they?

          Real time on this issue (judges and conflicts involving oil companies) started at least at some realistic point after Katrina. I don’t think you can persuasively portray DOJ’s lawyers in this case as a bunch of missing-one-front-tooth Condi Rice cultists, naively blinking in the light of reality and moaning, “who could ever have imagined.”

          If they are – they should be fired. Lots of lawyers out there who need jobs with Gov type benefits and who wouldn’t get that one wrong.

        • BayStateLibrul says:

          Wouldn’t the solution be to yank the DOJ out of the cabinet and
          have an independent arm with less politics…
          Not gonna happen, but…

        • Mary says:

          I don’t know if it would be “the” solution, but I think it would be a great idea and a better situation than we have – but it would take the kind of legislation or even consitutional amendments that you are right – aren’t going to happen.

          OTOH, there are a lot of thing that could be done within the framework we have. For example, judges could visit consequences on Govt lawyers they way they do on non-gov lawyers. With proper judicial enforcment of the existing requirements of candor to the tribunal, for example, someone like Paul Clement wouldn’t be pal-sing around at Salon with Walter Dillinger, pontificating on the recent court rulings, but would instead be disgraced as the first member of the Solicitor General’s office barred from appearing in front of the Sup Ct.

          The kind of flagrant misrepresentations he made, especially so quickly revealed and then revealed to be a part of a such a pattern of lies to the courts – that would have done in non-gov lawyers. Non-Sup Ct clerk non-gov lawyers I guess I should say.

          And with Clement spun, the “next guy” drafted to go make the arguments to the court is going to do his due diligence and make his clients toe the line. He’s going to grill, get the facts and ask them wtf is going on. When/if a John Yoo or a Jack Goldsmith or a Dan Levine is faced with a Ted Olson who’s just had his protege barred from appearing in front of the court in a misrepresentations scandal called back in to to the court to clarify the record, likely under oath, they are going to have some personal consequence attached to their actions – especially when they might then have to sign off on declarations to the court under oath on the matters previously misrepresented.

          That’s just one, minor example, The fact that the court has now become such a political wing that it countenances Executive branch crime with deferential denials of cert – that’s showing how even making the DOJ more independent, with a cowed bench, does very little.

          You see, it’s okeydokeysmokey for the lawyers involved in the Arar torture planning, conspiracy, coverup etc., bc, well golly, poor Assad’s gov might suffer bad consequences if there was suddenly a case front and center detailing his a) support of the US and b) willingness to torture innocent Muslims for the US.

          As if it were a factor for the court – whether criminals might become the object of dislike if their crimes were revealed. Scalia was pretty puffy about how people in a democracy have to be willing to have their names outed on petitions – that there’s a need for a baseline of bravery in a democracy. Well, there’s a baseline of bravery that’s needed for the courts when faced with clear crime and criminals. Scalia didn’t have it.

        • bmaz says:

          You didn’t even mention retiring the Great Margolis immediately and actually putting some competent teeth into the OPR like it had under Shaheen.

        • Mary says:

          Or a real indpendent counsel statute again, or Congress cutting off funding if they don’t get what they want, or a statute requiring OLC to publish all opinions or to allow it to not publish only if the FULL judiciary and intel committees are given the unredated opinions and specifying that there can be no reliance on unpublished memoranda; or authorizing prof ethics reviewers to have cross agency authority and to utilize criminal prosecutors to assist them in their investigations, or statutorily requiring that all Exec employees who refuse to comply with Congressional subpoeans or respond to Congress lose their pensions and benefits, or …

          There’s a hell of a lot they could do and know they should have done and they don’t do just for the cover up aspects. Bc both parties have things they don’t want aired and us “small peoples” just need to hush up now, or the may have to get a wholly owned prosecutor to say it is “material support” for terrorism to have contempt for Congress, even though the DOJ can openly operate day to day, month to month, year to year, in contempt of Congress.

          BTW – Burge was convicted. Cue up the appeals.

        • bmaz says:

          Where is the old “It’s Fitzmas” crowd when you need them? Maybe they are just waiting for Blago to go down…..

        • Mary says:

          For my part, I was waiting for the defense to introduce the OLC memos – you, the stuff that was “binding” on the DOJ until Obama revoked them – as proof that if all they meant was stuff like electric shocks and suffocations, it’s not “torture” bc Jay Bybee sez’d so. No organ failure, no death, no limbs cut off – where’s the torture? Burge was just using the language as interpreted by Judge Bybee, by UCDavis guru John Yoo, but Harvard guru Jack Goldsmith, by Fitz’s pal Comey, by Pepsico Counsel Larry Thompson, etc.

          If Paul Clement wasn’t engaged in perjury and obstruction with what he said to the Sup Ct while the SOL was still open, how could Burge be in a lil ol set of responses in a piece of civil damages lit?

          They both said pretty much the same thing – with pretty much the same actual or constructive knowledge.

        • thatvisionthing says:

          Plus don’t I remember a post here (bmaz?) about how Fitzgerald’s scope and focus of investigation could be changed by someone in DOJ without Congress knowing? Congress had to ask, and apparently they wouldn’t or didn’t? We may never know, Congress apparently doesn’t know, exactly what his final parameters were? It was amazingly screwed.

        • thatvisionthing says:

          in comments thread at Pat Fitzgerald Chose Not to Consult with Margolis on Rove Indictment: @ 42, 71, 78, 97, 98, 102, 103, 104 — Margolis (may or may not?) have been Fitzgerald’s supervisor with the power to change his mandate and not inform Congress that he had done so, and Fitz kept trying to make that point to Congress, as if inviting Congressional oversight. Congressional response unknown?

          (my take on a quick surf backwards, I could be off)

          sumup from Mary from @103

          After too much time spent googling (and finding lots of comments I made here on the Margolis supervision thing but no links) I found a comment from MadDog back in 2008 that linked to what I’ve been thinking about:


          OT – In case folks missed it, here’s a little something from Conyer’s Judiciary Committee:
          USA Patrick Fitzgerald’s Responses to Questions for the Record of the Hearing on 2/26/08

          That last part – the responses – goes to a dead link though. But later in that thread I quote from a part of it


          70 – I missed that – thanks. I’m not sure how many times Fitzgerald and the Court can flat out say that his delegation was always subject to being rescinded or modified at any time and at the will and whim of the Acting Attorney General, and that the Acting Attorney General had continuing ability to revise the authority granted (even in secret, like a pixie dust EO revisions) and that the authority delegated “for the purpose of promoting the perception of independence” was “at all time subject to revocation and modification” before someone clears the decks and asks if it ever WAS modified or rescinded, in whole or in part.

          What I put in quotes came from Fitzgerald’s responses. I thought it was really odd that he came out and said that his delegation wasn’t really done in such a way as to make him independent, but rather was done “for the purpose of promoting the perception of independence” I don’t know the guy, but his word choice on “perception” made a bulb start to blink for me.

          . When he then goes on, yet again, to discuss his authority in terms of “perception” of independence and not acutal independence, then on p. 4 says:

          “While these provisions … subject a Special Counsel … to greater ongoing supervision than I was subject to … it must be remembered that it was the Acting Attorney General’s stated intent that the terms of the delegation to me maximize the perception of independent decision making. That said, the terms of the delegation to me as Special Counsel … allowed the delegation to be revoked or modified at will, including by requiring reports or consultations”

          And yet no one ever asks him if that delegation was modified to, for example, include the “just picked out of the air” example he gave of requiring reports or consultations.

          I hope someone can find a working link to those responses, but after 2 years I don’t know what’s available.

          This would be a challenge to Congress more than Kagan? Though of course her DOJ experience would make her opinion of it all pretty interesting.

        • harpie says:

          Which means they are either butt ass stupid or not zealously representing the supposed goal of their client.

          I think the answer is in the phrase “supposed goal”.

  19. oldoilfieldhand says:

    Is it possible that the DOJ and DOI lawyers are alumni of Liberty Law School, contemporaries of Kyle and Monica, bottom of their class morons, deeply rooted leftovers from the criminal Cheney-Bush Administration?

    • Mary says:

      Of course, it will be too much to ask of any of the Dems, who don’t want to look “corrupt” to ask Kagan how she managed to find no problemo with how Siegelman was handled.

      • fatster says:

        Oh, no. Just another lovely day in D.C. Why rock the boat by asking meaningful questions?

      • Gitcheegumee says:

        Amazing synchronicity with the germane timing of both Siegelman and big tobacco issues -both involving Kagan:

        Mon Jun-28-10 03:30 PM
        Original message
        Tobacco Damages Sought by U.S. Rejected by Supreme Court; Altria Advances
        Source: Bloomberg

        The U.S. Supreme Court rejected the Justice Department’s bid for as much as $280 billion in tobacco company profits, refusing to hear an Obama administration appeal. Altria Group Inc. and Reynolds American Inc., the largest cigarette makers, surged on the news.

        The rebuff all but ensures that the racketeering suit first pressed by former President Bill Clinton’s administration won’t result in financial penalties against Altria’s Philip Morris USA and R.J. Reynolds Tobacco Co. It’s the second time the high court has refused to hear government arguments in the case.

        Read more: http://www.bloomberg.com/news/2010-06-28/tobacco-damage

        Kagan confirmation would affect major tobacco case – Yahoo! NewsJun 13, 2010 … Slideshow:Supreme Court Justice Nominee Elena Kagan …. 1997 Tobacco Industry, National settlement with Coalition of states settles for …
        news.yahoo.com/s/ap/20100613/ap…/us_kagan_on_the_sidelines – Cached

        Articles:Listing SettlementsJun 18, 2010 … Tobacco-Settlement: Treasury Youth Smoking Report … Elena Kagan has been battle tested by tobacco legislation in the ’90s …
        http://www.tobacco.org/articles/category/settlements/?top_only... – Cached

        Big Tobacco makes secret plea to avoid payout – Health …Jan 16, 2010 … Tobacco industry lawyers met secretly with the solicitor general in an effort to … Estrada met secretly in mid-December with Solicitor General Elena Kagan. … as part of a possible negotiated settlement of the suit, …
        http://www.msnbc.msn.com/id/34894780/ns/health-addictions/ – Cached – Similar

        NOTE: fatster, thanks for the link @#75

        • Gitcheegumee says:

          HERE is an excellent and very informative statement from Campaign for Tobacco Free Kids:

          U.S. Supreme Court Upholds Verdict that Tobacco Companies …‎ – 1 day ago

          WASHINGTON, June 28 /PRNewswire-USNewswire/ — The following is a statement of Matthew L. Myers, President, Campaign for Tobacco-Free Kids: The US Supreme …
          PR Newswire (press release) – 425 related articles »

  20. Gitcheegumee says:

    Joshua Frank: Elena Kagan and MonsantoMay 19, 2010 … GM’s Shell Game. John Stanton HTS: More Feared Than the CIA? …. In stepped Elena Kagan, whose role as solicitor general is to look out for the … The Supreme Court’s decision on Monsanto’s alfalfa ban will likely come …
    http://www.counterpunch.org/frank05192010.html – Cached

    Supreme Court Lifts Ban on Planting GM Alfalfa – NYTimes.comJun 21, 2010 … In its first ruling on genetically engineered crops, the Supreme Court … http://www.nytimes.com/…/21greenwire-supreme-court-lifts-ban-on-planting-gm-alfalfa-57894.html – Add to iGoogle

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