Sunday, December 18, 2011

Is Judge Goldsmith Biased in AATA Suit?

Henry Herskovitz is reporting another apparent conflict of interest in the AATA "Boycott Israel" advertising controversy. In a section of his recent vigil report entitled "Disturbing News Flash" he writes:
On the heels of this conflict of interest existing with AATA Board members and Counsel, comes this: according to U.S. District Judge Mark Goldsmith's biography, "[Goldsmith] has also served in the leadership of several community organizations, including ... the B'nai B'rith Anti- Defamation League." We have also determined from a separate and reliable source that his leadership included Board membership on the ADL. How many foxes does it take to guard this henhouse? Will someone ask Judge Goldsmith whether he supports Israel’s claimed right to exist as a Jewish state (the ADL sure does), and whether that answer might influence his ability to render a fair verdict?
Judge Mark A. Goldsmith was nominated to the federal bench by Barack Obama while serving on the Oakland County Circuit Court. A little digging revealed more evidence of Goldsmith's potential bias in the Ann Arbor Transportation Authority case. Goldsmith's 2010 federal Financial Disclosure Report (Section VII) indicates that he doesn't own any US bonds but he does own Israel Bonds and they're the only asset for which he did not declare a value. Furthermore, Goldsmith and his wife sent their sixteen-year-old daughter to study in Israel. Can a man with such strong Zionist ties really be expected to preside impartially at a trial over the constitutionality of an advertisement graphically criticizing Israel as an apartheid state and calling for its boycott?

The Code of Conduct for United States Judges says:

CANON 2: A JUDGE SHOULD AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL ACTIVITIES
  1. Respect for Law. A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
  2. Outside Influence. A judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment. A judge should neither lend the prestige of the judicial office to advance the private interests of the judge or others nor convey or permit others to convey the impression that they are in a special position to influence the judge. A judge should not testify voluntarily as a character witness.
  3. Nondiscriminatory Membership. A judge should not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin.
Regarding Canon 2B, Goldsmith has or recently had demonstrable family and financial ties to Israel. It may be, too, that his social relationships unsuit him to preside at this trial. In the nominee's questionnaire Goldsmith submitted to the judiciary committee, he discloses that he became Vice-President for Religious Affairs of B'nai B'rith Barristers in 2009. "Advocacy for Israel" is second on B'nai B'rith's list of "Our Prime Issues". B'nai B'rith has publicly "condemned" supporters, such as Archbishop Desmond Tutu, of the international boycott of Israel. Furthermore, Goldsmith has been a member of the American Israel Public Affairs Committee since the 1990s.

Goldsmith is also evidently a "strictly Sabbath observant," devout adherent of Judaism; he is a cantor at his synagogue and a serious student of the Talmud. In his nominee's questionnaire Goldsmith reports that he is a member of the Board of Directors of the Council of Orthodox Rabbis of Greater Detroit. Goldsmith was profiled in 2011 in "Jewels of Justice: Timeless Jewish Values in the American Courtroom" in the American Jewish Spirit (emphasis added). Reportedly, at his federal investiture ceremony, "the newly appointed judge said 'he was grateful to the Almighty for allowing my plan to be part of His plan,' and in the words of an ancient Jewish prayer, thanked God for 'granting us all life, sustaining us and allowing us to reach this day.' ... 'I do believe with a complete faith, Judge Goldsmith said, 'that the Spirit above guides the spirit within.' "

Being devoutly religious should not per se be a disqualifying factor but one wonders how the "Spirit above" will guide Goldsmith's "spirit within" when it comes to Coleman v. AATA. He's been a member of Congregation Beth Shalom since 1987; he joined its Board of Directors that same year and served until 2005. He was the president of the congregation from 1997 until 1999. Congregation Beth Shalom describes itself as providing "opportunities for all ages that nurture our love of and commitment to Jewish life, our Synagogue and the State of Israel" and it hosts an "Israel Affairs" committee. There can be little doubt that the Congregation Beth Shalom agrees that Zionism is an affirmation of Judaism and "has its origins and roots in the authoritative religious texts of Judaism. ... Anti-Zionism, not Zionism, is a departure from the Jewish religion."

Regarding Canon 2C, Goldsmith's service (1986-1994) on the "Regional Advisory Board of B'nai B'rith Anti-Defamation League" (ADL), which was highlighted in his Senate confirmation hearing, sets off alarm bells. The ADL is decidedly and undeniably pro-Israel and that to the detriment of Palestinians. A case can be made that it "practices invidious discrimination" (although probably not in its membership) against non-Jewish people and Jews who are not Zionist (or insufficiently so).

In 2000, a Colorado jury awarded a $10 million judgment against the ADL to two people who had been defamed as "anti-Semites" by the ADL. That award survived all ADL appeals. Earlier, in 1999, the ADL was forced to pay $175,000 in an out-of-court settlement stemming from forty years of domestic political espionage by the ADL. The ADL has been active in lobbying against Congressional recognition of the Armenian genocide. This had led some Massachusetts communities to pull out of the ADL's bogus "No Place for Hate" campaign. Interested readers are urged to have a look at Professor Steven Salaita's book, Israel's Dead Soul. Salaita devotes an entire chapter to the ADL where he makes a compelling case that "according to its own public criteria, the ADL should classify itself as a hate group."

In light of all of the above, should Goldsmith recuse himself? You decide. Canon 3C(1) of the Code of Conduct for United States Judges says: "A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned ..."

See also Coleman v. AATA Update

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