Controversial decision to block deep water drilling moratorium marred by conflict-of-interest...
By Ernest A. Canning on 6/24/2010, 2:22pm PT  

Guest blogged by Ernest A. Canning

U.S. District Court Judge Martin Feldman, a 1983 Reagan appointee to the federal bench, issued what, on its face, would have to be regarded as an astounding decision [PDF] in which he blocked a six month moratorium on deep water off shore drilling, ruling that the Department of the Interior had erroneously assumed that because one rig failed, there was an imminent danger of others failing as well.

A perplexed Justice Department promptly announced that it intends to seek an immediate stay of Judge Feldman's preliminary injunction pending an appeal.

Setting aside what appears to be an inappropriate judicial intrusion by a Federalist Society-connected jurist into the prerogatives of the Executive branch in protecting public health, safety and the environment, setting aside the misguided notion that the burden rests with the government rather than the oil companies when it comes to demonstrating whether deep water drilling procedures are safe, Judge Feldman's decision --- and his failure to recuse himself despite conflict-of-interest concerns --- raises a significant question as to whether he should be impeached...

Judicial Conflict-of-Interest as Grounds for Impeachment

As observed in a 1995 University of California, Hastings Law Review article:

Although the Constitution limits removal by impeachment to actions of "Treason, Bribery, or other high Crimes and Misdemeanors," scholars have noted that impeachment proceedings may be instituted for offenses outside the criminal realm. Such offenses include acts that undermine public confidence in the judiciary or compromise the integrity of the judicial branch. Thus, one aim of impeachment proceedings is to shield the judiciary from any appearance of impropriety.

Even though, in "Citizens United: A Case Which Will Live in Infamy," I conceded that the decision by the five-member Republican Supreme Court majority to extend to corporations so-called "free speech rights" at the expense of the "free press" rights of our republic's human citizens may well have been tantamount to "treason," I argued that the call made by the activist group, The Pen, to initiate impeachment proceedings against those five "radicals-in-robes" was fraught with the risk that impeachment "could be perverted into a dangerous precedent for impeaching jurists whenever they make a decision that is unpopular."

But this current case arises from something more than the Federalist Society's usual affinity for, and defense of, corporate wealth and power. Judge "Feldman has extensive stock holdings in energy companies, including Transocean, which owned the Deepwater Horizon oil rig where the explosion occurred, and Halliburton, which also performed work at the site. Feldman also owns stock in two of BP’s largest shareholders, BlackRock and JPMorgan Chase."

While the corrupting influence of corporate money throughout the Executive and Legislative branches of government is now so pervasive that books like Jim Hightower's Thieves in High Places have garnered matter-of-fact attention, the presence of even the appearance of impropriety is simply untenable when it occurs within our nation's judicial branch.

It is an issue which prompted the U.S. Supreme Court to grant a hearing in Caperton v. Massey Coal Co., because West Virginia Supreme Court Justice Brent D. Benjamin, who had received more than $3 million in campaign contributions from Massey CEO Don L. Blankenship, took part in decisions which favored Massey.

In its Supreme Court amicus brief [PDF], the Brennan Center for Justice argued that "the injection of massive sums of money into judicial campaigns by litigants and lawyers can, in extraordinary circumstances, threaten the integrity, impartiality, and independence of the courts, and thereby deprive the litigants appearing before those courts of due process of law."

Here, we deal with something much more blatant than campaign contributions. We deal with an absurd decision (see Rachel Maddow video below) issued by a federal judge whose wealth may be directly affected by the outcome.

The first troubling feature is a lack of propriety in the acquisition of oil industry wealth by federal judges who hold court in a region where oil industry litigation is bound to come before them. Thus, we find the Los Angeles Times reporting:

Seven of the 12 federal judges of the Eastern District of Louisiana already have cited potential conflicts of interest in bowing out of cases brought by fishermen, charter operators, tourist services and families of those killed in the April 20 explosion of the Deepwater Horizon rig in the Gulf of Mexico.

Recusals in oil industry cases have become so common among the judges that the U.S. 5th Circuit Court of Appeals last month left in limbo a landmark case brought by Hurricane Katrina victims because the court couldn't muster a quorum to review it. Eight of the circuit's 17 judges stepped down because of financial interests in the oil, gas and chemical companies being sued for alleged culpability in global warming.

The problem is that in this instance Judge Feldman did not recuse himself. While he did not have a direct financial interest in Hornbeck Offshore Services, the petroleum products transport company which brought the lawsuit, Feldman swiftly moved to enjoin enforcement of the moratorium knowing full well that his decision could favor his own personal financial bottom line. Feldman has thus issued what has to be seen as a "corrupt decision" that strikes at the heart of our concepts of impartial courts and due process of law --- one which merits impeachment and removal from what otherwise is a lifetime appointment to the federal bench.

Federalist Society Hypocrisy

In "Citizens United: A Case Which Will Live in Infamy" I described the counter-revolution in law which saw our courts stacked by jurists who hailed from the Robert Bork-founded, billionaire-funded Federalist Society. I described the radical nature of its "Unitary Executive" theory, noting:

The Federalist Society deference to unchecked, dictatorial executive power is so great that in his dissenting opinion in Hamdi vs. Rumsfeld, a case in which the Court held that a U.S. citizen designated as an "enemy combatant" had a right to contest the factual basis for his detention before a neutral arbitrator, Justice Thomas argued that any effort by the courts to act as a check against executive lawlessness would destroy "the purpose of vesting primary responsibility in the unitary Executive."

What Judge Feldman has revealed, however, is that while these "radicals-in-robes" can't defer fast enough to the powers of the "Unitary Executive" when it comes to arrest, detention and torture of innocent detainees who had been snatched up by CIA rendition teams, they are ready to squelch any and all efforts of that same "Unitary Executive" to impede unchecked corporate wealth and power.

The hypocrisy only serves to underscore the venality behind this absurd decision.

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UPDATE 06/24/10: Today, Judge Feldman denied a motion by the Justice Department that he stay his ruling pending the appeal.

UPDATE 6/26/10: New evidence, disclosures on Feldman's oil industry holdings, reveals he willfully failed to recuse himself from the moratorium case despite full knowledge of conflicts-of-interests. Full details now here...

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Rachel Maddow’s June 22 segment on Judge Feldman’s conflict-of-interest follows below...


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Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968).

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Article Categories: Impeachment, Accountability, Environment, U.S. Supreme Court, BP Oil Disaster