Justices Ruth Bader Ginsburg and Elena Kagan "have each engaged in public conduct suggestive of bias," reads Louisiana House Concurrent Resolution 85, sponsored by state Rep. Valerie Hodges, R-Denham Springs. In engaging on the issue of same-sex marriage, the justices have "thus demonstrate(d) an inability to be objective," and should therefore withdraw from the Obergefell v. Hodges case, the resolution says.Embarrassing.
And why Ginsburg and Kagan in particular? What was the "public conduct suggestive of bias"? Just because you can predict in advance where their thinking on a legal issue will lead them doesn't mean they are any more biased and bereft of objectivity than anyone else on the Court. In fact, unpredictability is more suggestive of bias. Consistency in legal reasoning, case by case and in expressions about law, suggests that you are following the norms of constitutional interpretation.
ADDED: A commenter says that the "public conduct" is officiating at same-sex wedding ceremonies. I'm seeing this at The Hill:
“Justices Ginsburg and Kagan, knowing full well that unique legal issues regarding the definition of marriage would soon come before them, deliberately officiated at so-called homosexual wedding ceremonies creating not merely the appearance of bias, but an actual and blatant conflict of interest,” [said Scott Lively, president of Abiding Truth Ministries].I don't see how participating in a wedding ceremony is a statement that you think there is a constitutional requirement that states must recognize same-sex marriage. Presumably, same-sex marriage was either already recognized in the place where Ginsburg/Kagan was performing the ceremony or it was a ceremony that wasn't recognized as creating a legal marriage. That probably shows they approve of same-sex marriage, though what Ginsburg did was perform a wedding for a former law clerk. Maybe she just treats all her former law clerks the same.
“In my personal view they have committed an unparalleled breach of judicial ethics by elevating the importance of their own favored political cause of gay rights above the integrity of the court and of our nation.”
Anyway, doing something doesn't mean you believe you have a right to do it, and it would be utterly unworkable to say judges who do something must recuse themselves in cases about whether there is a right to do something. Should a judge who's had an abortion have to recuse herself in abortion cases? Should a judge who has given a speech have to recuse himself in a free speech case?
ALSO: A separate question is: Let's assume that doing something does equal a statement that one has a right to do it. Is belief that a right exists bias? I can't see that. I think the argument is more that a decision about the law was arrived at too early. But that doesn't make sense. Judges are always thinking, writing, and speaking about the law, forming beliefs about the answers. There's nothing wrong with that. I know there's this idea that Supreme Court Justices shouldn't express their conclusions about cases that might later come before the Court. That's the stock answer to every other question at confirmation hearings, though the Senators doing the questioning don't seem to think there's anything wrong with repeatedly inviting nominees to tip their hand.
There was a famous instance of a recusal by a Justice who tipped his hand about a pending case. Back in '03, Justice Scalia dropped out of the case about whether "under God" in the Pledge of Allegiance violated the Establishment Clause:
According to press accounts, in his talk to the Knights of Columbus, Justice Scalia adverted to the lower court rulings in the Newdow dispute twice -- both in his prepared remarks and in response to a protestor in the audience.Was that recusal required or even advisable? I don't think so. And I'm suspicious. I think the recusal served the interests of conservatives. As it happened, the Supreme Court weaseled out, but if the Court's liberals had not figured out a way to avoid the merits — they used standing doctrine — they might have had to say that "under God" violated the Establishment Clause, and that would have been very useful to conservatives in the 2004 presidential election. It was well-remembered that in the 1988 election, George H.W. Bush had battered Michael Dukakis over the Pledge of Allegiance:
First, Scalia mentioned prior rulings by his own Court indicating that government could not favor any religious sect or religion over non-religion. He observed that such rulings were "contrary to our whole tradition, [and] to 'in God We Trust' on the coins," and said that these rulings had created inconsistencies that lent "some plausible support" to the lower court rulings in Newdow.
Second, when Scalia saw a protest sign in the crowd, he remarked: "The sign back there which says, 'Get religion out of government,' can be imposed on the whole country. . . . I have no problem with that philosophy being adopted democratically. If the gentleman holding the sign would persuade all of you of that, then we could eliminate 'under God' from the Pledge of Allegiance. That could be democratically done." Scalia thus arguably implied that the elimination of the "under God" phrase could not be accomplished by any Court -- even his own.
With President Reagan at his side in a raucous campaign rally here, Vice President Bush intensified his argument with Michael S. Dukakis today over the Pledge of Allegiance. He said he would have signed a bill that Mr. Dukakis vetoed in 1977 requiring teachers to lead their classes in the pledge.Newdow was a rich political opportunity, and I'm sure Scalia knew that. So one could say that his recusal was biased, since he would have voted on the side that would not have leveraged the conservative presidential candidate.
'What is it about the Pledge of Allegiance that upsets him so much?'' Mr. Bush said of Mr. Dukakis, as an enthusiastic crowd roared its agreement. ''It is very hard for me to imagine that the Founding Fathers - Samuel Adams and John Hancock and John Adams -would have objected to teachers leading students in the Pledge of Allegiance to the flag of the United States.''
Posts
96 comments:
Agreed, it is stupid, but harmless.
It's not harmless to the reputation of Louisiana.
I remember about a year ago there was a huge push to get Justice Thomas to resign from the court.
Maybe it was longer ago than that. Was it then-Congressman Anthony Weiner pushing it?
Okay as far as this goes. But if Ginsburg and Kagan are gay, should they recuse? What if they are gay and have a personal desire to marry someone? Alternatively, should the others recuse themselves because they are married to someone of the opposite sex?
It is because the two justices have performed gay marriages. Were you not aware of that fact, professor?
I agree with you that it is an unworthy and futile gesture on the part of the Louisiana legislature.
But a lot more meritorious, would have been a motion to recuse Judge Vaughan Walker in the Hollingsworth case.
They have to throw a bone to their supporters. Of all the idiotic things Legislatures can do to throw bones, this seems minor.
Of course I deserve your financial support! I told off those Supreme Court Justices!!
"Ann Althouse said...
It's not harmless to the reputation of Louisiana."
How is it harmful for LA?
Kagen ought to recuse herself for being an idiot on all cases.
Conflict of interest isn't the problem. That's just a matter of low or high character, not of idiocy.
Her character may be okay. But it does no good against idiocy.
Chuck is much closer to the mark here. Having performed same-sex marriages in their official capacity, they would seem to have at least some conflict of interest, however marginal. Reasonable minds could differ, but it's not entirely "embarrassing" to ask the question.
Judges ought not to actively participate in controversial causes that are apt to come before their courts.
It was poor judgment on the part of Ginsburg and Kagan, and it is their reputations that are damaged, if any.
How is it harmful for LA?
It's a good example of the inattentiveness of the Legislators there.
No one was paying attention -- that's how it got through with no 'No' votes!
Embarrassing, but smacks of "turnabout is fair play." Democrats have been trying for years to get conservative justices to recuse themselves on flimsy grounds. This was bound to happen.
It is not so much "conflict of interest" as "Screw impartial interpretation of the Constitution. We are Democrats!"
And why Ginsburg and Kagan in particular? What was the "public conduct suggestive of bias"?
So justices making public statements campaigning for a for a particular outcome in cases before the court gave always been considered acceptable behavior?
You lie!
"MadisonMan said...
How is it harmful for LA?
It's a good example of the inattentiveness of the Legislators there.
No one was paying attention -- that's how it got through with no 'No' votes!"
LOL She's talking about the Yes votes.
And more specifically, the resolution itself.
"It is because the two justices have performed gay marriages."
What does performing a wedding in a place where gay marriage is recognized have to do with judicial reasoning about whether there is a constitutional requirement to recognize gay marriage?
Even if performing a wedding evinced a belief that there is a constitutional requirement, why would acting on that belief be evidence of bias.
Are you aware of the meaning of bias? It means you have some inappropriate interest that's swaying your reasoning. Believing that there is a right isn't inappropriate.
As to LA, I'd offhand read it as a reminder that voters elect representatives do decide stuff like SSM and the voters are against it.
The court has no such legitimacy.
Picking Ginsburg and Kagen because they're sure votes to make the point.
Are you aware of the meaning of bias? It means you have some inappropriate interest that's swaying your reasoning. Believing that there is a right isn't inappropriate.
If you believe it it might point to bias.
What you have to do is justify it, not just believe it.
Believing may be a sure indicator of bias. I'd say it is, in this case.
Such resolutions are silly, but understandable since the states no longer have representation in the Federal government. When U.S. Senators were accountable to their state legislatures, they might have been expected to have taken up such issues.
If asking for the recusals is fundamentally silly and has nothing to do with the source, at least a U.S. Senator is expected to bloviate on a national scale.
If I believe 2+2=5, and 4+4=9 and 6+6=13, I believe but nevertheless show a bias of 1.
The bias is because I always include myself in the count.
This makes me unreliable in jobs requiring arithmetic, but not a bad person.
The same thing happens with Kagen.
"Ann Althouse said...
"It is because the two justices have performed gay marriages."
What does performing a wedding in a place where gay marriage is recognized have to do with judicial reasoning about whether there is a constitutional requirement to recognize gay marriage?
Even if performing a wedding evinced a belief that there is a constitutional requirement, why would acting on that belief be evidence of bias.
Are you aware of the meaning of bias? It means you have some inappropriate interest that's swaying your reasoning. Believing that there is a right isn't inappropriate."
Would you say the same thing of a justice that was at an anti SSM rally?
What does performing a wedding in a place where gay marriage is recognized have to do with judicial reasoning about whether there is a constitutional requirement to recognize gay marriage?
Never mind that. Here is how to further this debate. List several cases where Justices HAVE recused themselves, especially these two Justices if possible, and then see if similar conditions apply.
It's only harmful to the reputation of Louisiana in your individual mind, if and only if you think there's harm in taking the position the LA House took. You don't like that position. Fine. Don't tour Louisiana. Plenty of other people will, and some will decide to live there.
Consistency in legal reasoning, case by case and in expressions about law, suggests that you are following the norms of constitutional interpretation.
It is hard to square this concept of consistency with finding a right in the Constitution that was -- up until 20 years ago -- literally unthinkable. NO ONE has argued for homosexual marriage "consistently" in your or my lifetime.
I don't see how participating in a wedding ceremony is a statement that you think there is a constitutional requirement that states must recognize same-sex marriage.
Well then take another look and figure out what you're missing.
Ann Althouse said "It's not harmless to the reputation of Louisiana."
This seems like a moral conclusion, an individual judgement, in which case it's not politically astute, because other people will judge otherwise-- Texas ain't growing faster than Maryland because it's run by leftists.
Maybe you mean LA is on the wrong side of history, because SSM is taking over everywhere. In that case, is the march of history always toward goodness? That's not the history of history.
Ann -- I don't understand why gay marriage is so important to you? What makes you think it is such a basic human right that they are being denied? Is it the emotional aspect? You seem to be a pretty emotional person. If someone comes to you in tears because they can't marry their dog, or their sister, will you be firmly in favor of that, too? Where is your line (or do you have one?)?
We're talking about 2-3% of the population. And I can assure you that a huge majority of that 2-3% have no desire to marry. And those that do can do so, in a church, and legally set up powers of attorney, etc. I don't understand the desperation to force everyone to recognize and celebrate them.
Bias may or may not be inappropriate.
Most of us have a bias in favor of flag, motherhood, and apple pie, and it is a good thing - has survival value for the country - and there is nothing "inappropriate" about it.
Chief Justice Chase was impeached for "inappropriate behavior," i.e. offensive to the "Republicans" of the time, on and off the court, just like Ginsburg and Kagan's behavior were offensive to the Republicans of today. There is no need for Justices to perform marriages of any kind; there are Justices of the Peace for that.
Should a judge who is a member of a religion that says marriage is limited to one man + one woman have to recuse themselves from a gay marriage case?
The resolution was stupid
Every call for a judge's recusal should be regarded as bullshit until proven otherwise.
Performing gay weddings might show bias depending on the status of the law at the time the weddings were performed.
Take for example, the brief time that wedding licences were issued in SF by the order of Gavin Newsom as compared to the handful of states that legalized gay marriage by popular vote or legislative action.
Performing a marriage in a condition where a temporary restraining order or appeal is in process is a public taking of sides. It indicates that they are uninterested in arguments that may come before them, that their minds are made up. If that isn't bias, what is?
It's absolute advocacy with such a landmark case coming before the court. Can you imagine your position if Alito and Thomas attended a 'God hates fags' rally? Perfectly legal, right?
1. It's the Althouse blind spot.
2. It was very foolish of Ginsburg and Kagan to participate in those ceremonies. Really stupid. If it's not an actual conflict, it creates the appearance of a conflict. They knew this was likely to come before the Court and should have demurred it requested to actually perform a ceremony.
3. Even with her blind spot, it's hard to believe that Althouse can't see how this looks to those who are impartial or on the other side of the issue.
Should a judge who's had an abortion have to recuse herself in abortion cases? Should a judge who has given a speech have to recuse himself in a free speech case?
The first question is similar; the second is not. The second would have to be rephrased as the judge using speech in the same manner as before the court. Alternately, you could rephrase the first question as "Should a judge who's had an abortion have to recuse herself in [reproductive rights] cases?"
And it's not a small point to overlook when discussing such things. The last question is there to nudge the others in the debate toward a "No" that can be applied back up to the original question, and while it is similar enough to look plausible, it is not really applicable.
Ann said:
I don't see how participating in a wedding ceremony,
"Participating"?
"Participating" would have been being a bridesmaid or such.
They, in their capacity as judges, officiated and solemnized a same sex marriage.
Yeah, I think they have shown their bias and conflict and should recuse themselves.
I also found it interesting that the LA legislators seem to routinely vote on legislation blindly, with no idea what it is about.
We've know that all along, of course. Just nice to see a legislator come out and say how they votes on stuff.
John Henry
"Ann -- I don't understand why gay marriage is so important to you? What makes you think it is such a basic human right that they are being denied? Is it the emotional aspect? You seem to be a pretty emotional person."
I'm not emotionally attached to the legal issue, and I think there's good practical reason for allowing the issue to ferment and percolate at the political level.
But I think that at this point in the precedent, the outcome is very obvious and it has been for a long time. I've taught these cases for many years, reading them over and over, and I think the legal conclusion is apparent.
It's very important to me that the case law proceed in a coherent way, based on proper judicial reasoning. I don't want anything other than that.
It's not emotional.
If the case goes the other way, I will read the opinions carefully and analyze them... not cry and whine about it.
Curious George asked Ann:
Would you say the same thing of a justice that was at an anti SSM rally?
Of course not. But Ann has a well know, public and understandable personal reason for bias in favor of SSM.
She is upfront about the bias which, for me, makes it OK. It let's me take it into account when reading what she has to say on the subject.
John Henry
"Should a judge who's had an abortion have to recuse herself in abortion cases? Should a judge who has given a speech have to recuse himself in a free speech case?"
Let's look more closely at this comparison because the details matter. Say there was a hate-speech law before the court and a judge had regularly engaged in what would be considered "hate-speech" by the law being appealed? It would not be crazy for people to expect the judge to recuse herself. At the very least, the judge would come under fair criticism that her behaviour was unbecoming for a judge.
The same could be applied to the abortion example: Did the judge have a 3rd term "partial-birth abortion"? Is the case before the court about the legality of 3rd term abortion bans? If yes to both of these questions, then yes--it is at least a legitimate concern.
In the United States, the term "recusal" is used most often with respect to court proceedings. Two sections of Title 28 of the United States Code (the Judicial Code) provide standards for judicial disqualification or recusal. Section 455, captioned "Disqualification of justice, judge, or magistrate judge," provides that a federal judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned."
Interestingly, Ginsburg is the one who typified her officiating the wedding as advocacy.
During a recent interview, Ginsburg seemed excited about being the first member of the court to conduct such a ceremony and said it was only a logical next step.
“I think it will be one more statement that people who love each other and want to live together should be able to enjoy the blessings and the strife in the marriage relationship,” Ginsburg said.
Ann said:
It's not emotional.
And yet you told us you were tearing up when listening to the case.
Sounds pretty emotional to me.
John Henry
Consistency is the hobgoblin of small minks.
Wait... you said you cried listening to the oral arguments yesterday.
I get what you're saying, but you're emotionally attached to what is going on with this. And that's okay, because you are only human.
I don't see how participating in a wedding ceremony is a statement that you think there is a constitutional requirement that states must recognize same-sex marriage
One of the most stupid statements you have ever made Ann.
Professor; in noting the apparent reason for picking Ginsburg and Kagan, I was only seeking to explain the fact and not argue the merits. I thought that my post made it clear that I share your doubts (at least) about the recusal issue.
But instead of fighting about that, I return to the issue of District Judge Walker having overseen the federal trial of the California same sex marriage case. When he lived as a closeted homosexual who clearly (in retrospect, undeniable) personal interest in the outcome. Inasmuch as he married his male lover shortly afterward.
The Kulturkampf
"Consistency in legal reasoning, case by case and in expressions about law, suggests that you are following the norms of constitutional interpretation."
Funny stuff.
Constitutionalizing SSM is just a matter of "consistency" and "following the norms." Got it.
"based on proper judicial reasoning"
Funny stuff.
We are properly screwed.
It's good to know that all the important things in Louisiana are already taken care of.
"PuertoRicoSpaceport.com said...
Curious George asked Ann:
Would you say the same thing of a justice that was at an anti SSM rally?
Of course not. But Ann has a well know, public and understandable personal reason for bias in favor of SSM.
She is upfront about the bias which, for me, makes it OK. It let's me take it into account when reading what she has to say on the subject.
John Henry"
Bullshit. Her statement at 9:02 AM: "I'm not emotionally attached to the legal issue, and I think there's good practical reason for allowing the issue to ferment and percolate at the political level." indicates she is not upfront about her bias (having a gay son).
But the statement goes unanswered, which is telling.
"Anyway, doing something doesn't mean you believe you have a right to do it".
I guess not. And I anticipate such behavior from drug dealers, petty criminals and graffiti artists.
Supreme Court Judges.... I would expect a bit more restraint.
Civil society may vote to count dogs's tails with legs for the purpose of assessing taxes, or tax rebates, based on the number of dogs' legs, or whatever, but they are still tails, not legs.
Andrew: Mr. Gilbertson, the truth is... Margaret and I... ...are just two people who weren't supposed to fall in love. But did. We couldn't tell anyone we work with because of my big promotion that I had coming up. -
Margaret: Promotion? -
Andrew: Yeah. -
Margaret: Your? -
Andrew: We... we both felt, uh... ...that it would be deeply inappropriate if I were to be promoted to editor. -
Margaret: Editor.
Andrew Mmmm-hmm. ...while we were... So...
- The Proposal
The state of Louisiana is in a complete financial mess. Jindal has a 25% approval rating in the deep red state-at least they have their priorities!
And Jindal is very excited about signing religious freedom law-that will be great for tourism in New Orleans.
Did Thomas recuse himself in Bush v. Gore while his wife was reviewing the résumés of applicants who wanted to work in a potential Bush administration? No. Did Scalia recuse himself in Bush v. Gore while his son was employed at the same law firm as Theodore Olson, who was arguing for Bush? No.
what Ginsburg did was perform a wedding for a former law clerk. Maybe she just treats all her former law clerks the same.
Ginsburg officated at the wedding of Michael Kaiser, one of her close friends. He's not a former law clerk; he's the president of the Kennedy Center.
Ginsburg said at the time that "she thought she and her colleagues had not been asked previously to conduct a same-sex ceremony for fear it might compromise their ability to hear the issue when it came before the court." That was in reference to the DOMA and Proposition 8 cases. And yet no cause for such concern this time around, I guess.
Ann & Savage Noble, the question, "Should a judge who's had an abortion have to recuse herself in abortion cases?" is the wrong question since the judges did not get SSMs but 'only' enabled them. A more appropriate question is "Should a judge who's performed an abortion have to recuse herself in determining whether abortion should be available on demand?"
Could be qualified to include "if it's available in adjoining states," but in any case the answer becomes more clearly yes, the judge has no business being a judge in such a case. The question has already been settled for the judge before the trial begins. Otherwise it's not a trial, it's an endorsement under the seal of the legal system. And it's not "due process" (in the penumbra of repercussions that involve loss of liberty and property).
Titus, please stop the flack attack and focus.
Did Thomas recuse himself in Bush v. Gore while his wife was reviewing the résumés of applicants who wanted to work in a potential Bush administration? No. Did Scalia recuse himself in Bush v. Gore while his son was employed at the same law firm as Theodore Olson, who was arguing for Bush? No.
But it was your side of the aisle that said they should recuse. So please show some consistency.
"What does performing a wedding in a place where gay marriage is recognized have to do with judicial reasoning about whether there is a constitutional requirement to recognize gay marriage?"
You're not being disingenuous enough. Try harder!
I started listening to the arguments yesterday and am about 40 minutes in.
The first, woman, attorney to appear seemed to be very weak in her arguments. She was asked a fairly simple question several times and refused to answer it, going off on a tangent each time. It seemed to get one of the Justices annoyed.
Another thing I found very interesting was that one of the Justices (Roberts?) made a statement that sexual preference was a choice. What was amazing was that nobody caught him on it. I wonder if this was careless phrasing on his part or if he really believes it?
I think the question of whether homosexuality is innate or choice has a big impact on whether discrimination in marriage rights is acceptable or not.
John Henry
I too wonder how anything could damage the reputation of Louisiana?
I already see it as a cesspit of corruption, incompetence and alligators.
I have trouble imagining how anything could make me think less of the state.
John Henry
If the case goes the other way, I will read the opinions carefully and analyze them... not cry and whine about it.
The fact that you won't cry about it is rather refreshing, actually.
No one seems to want to take on the much more interesting and controversial subject of Judge Vaughn Walker's recusal.
Ed Whelen of the National Review Online did a superb job of reporting the issue.
Here.
http://www.nationalreview.com/bench-memos/265587/motion-vacate-walkers-anti-prop-8-judgment-failure-recuse-ed-whelan
And here.
http://www.nationalreview.com/bench-memos/266418/more-distortions-grounds-vaughn-walkers-recusal-obligation-part-1-ed-whelan
And here.
http://www.nationalreview.com/bench-memos/266186/confused-defenders-vaughn-walkers-failure-recuse-part-1-ed-whelan
No serious legal scholar ever thought that Kagan and Ginsburg would recuse themselves. Many serious legal scholars thought that Walker's recusal was a serious issue, and the fact that soon after his famous/infamous trial, he took advantage of his own ruling and married his homosexual partner, simply made the pro-recusal case even stronger.
Recusal in such a situation, Professor Althouse, is no joke.
Now; setting aside the hard issue of recusal, as a matter of judicial ethics, ought Justice Kagan disclose herself to be a homosexual contemplating a gay-marriage if indeed that is the case?
Just one day ago, Justice Kagan was part of the liberal Court majority which held that judicial-transparency appearances were so important that free speech and association principles could be abridged in order to promote them.
Williams-Yulee v. Florida Bar.
It's very important to me that the case law proceed in a coherent way, based on proper judicial reasoning. I don't want anything other than that
Really?
I call bullshit.
You can start by trying to justify Roe V Wade.
"And yet you told us you were tearing up when listening to the case."
I'm sorry people failed to understand what moved me. I wasn't "listening to the case" (that is, the actual argument). I was hearing some individual in the audience who made the choice to start yelling about religion. And it wasn't the substance of the statement that affected me, it was something about the woeful isolation of the man who cried out -- his anguish and hopelessness as he tried to convey a stupid idea about the hopelessness of others. It was a human being crying out "I am lost." And I sincerely wonder what would Jesus do?
"You can start by trying to justify Roe V Wade."
But that's not how it's done. The existing case law is already there. Part of constitutional law is working from there. The Court considered overruling Roe in Planned Parenthood v. Casey, so you have to look at that too. There is reliance on the continued stability of the case law.
@Chuck
You seem to think it's possible for judges not to be real human beings. Who would escape recusal? If gay judges are unacceptably biased, then straight judges are also unacceptably biased.
You were crying out in compassion for the guy who said that gays would burn in Hell? Solidarity for his woeful isolation? That's really not the way your comment was presented the other day, Professor. But, whatever...
Ann,
I would agree with you that this isn't a conflict of interest but for different reasons.
The weddings they officiated were in Maryland and D.C. if the supreme court says there is no right to gay sex marriage, these marriages are still legit.
If they had married someone in California, however, then this decision could make gay sex marriage illegal in california. This would be a conflict. They would be voting to undermine their own actions.
If Ginsburg and Kagan do not recuse themselves and the Court issues a 5/4 decision that finds the Constitution requires states to authorize same-sex marriage, a great many people, most likely the majority, will not accept the decision simply because they will conclude the whole thing was rigged.
This should worry anybody who is concerned about the legitimacy of the Court. If the majority of the population come to believe Supreme Court decisions are nothing but shams, sooner or later the states will just ignore them.
Ann,
If gay judges are unacceptably biased, then straight judges are also unacceptably biased.
This ignores reality. Among heterosexuals, you don't have a herd consensus on gay sex weddings. As a matter of fact, if you come out in favor, you're celebrated as courageous.
On the other hand, if you engage in homo sex and are opposed to gay sex weddings, you're worse than a traitor. You're a despicable human being.
Therefore, there is no pressure on a heterosexual to be for gay sex. All the pressure is applied to those who are against. And they are run out of polite society.
Likewise, if you're into gay sex, then there is overwhelming pressure on you to be for a right to gay sex weddings.
@Althouse:
Very uncharacteristically, you haven't done your homework. Reading the Defendant-Intervenors' Brief in Support of their Motion to Vacate in Hollingsworth v. Perry would have informed you of their basic position regarding the very point you raised.
From page 5 of the brief:
"It is important to emphasize at the outset that we are not suggesting that a gay or lesbian judge could not sit on this case. Rather, our submission is grounded in the fundamental principle, reiterated in the governing statute, that no judge 'is permitted to try cases where he has an interest in the outcome.' In re Murchison, 349 U.S. at 136.
Surely, no one would suggest that Chief Judge Walker could issue an injunction directing a state official to issue a marriage license to him. Yet on this record, it must be presumed that that is precisely what has occurred. At a bare minimum,'[r]ecusal is required' because former Chief Judge Walker’s long-term committed relationship, his failure to disclose that relationship at the outset of the case, his failure to disclose whether he has any interest in marriage should his injunction be affirmed, and his actions over the course of this lawsuit give rise to 'a genuine question concerning [his] impartiality.' Liteky, 510 U.S. at 552."
Case3:09-cv-02292-JW Document768 Filed04/25/11 Page13 of 26
If Ginsburg and Kagan do not recuse themselves and the Court issues a 5/4 decision that finds the Constitution requires states to authorize same-sex marriage, a great many people, most likely the majority, will not accept the decision simply because they will conclude the whole thing was rigged.
And if some of the States in response to such a decision say “no, we won’t” and refuse to recognize SSM as a “marriage” for the purpose of their State laws, then what? It’s likely that such an action would be supported by a majority of citizens in their States (another reason the courts should have stayed out of it and let political process work through the issue). AFAIK there isn’t any law on the books that ties federal funding to the recognition of SSM and Congress certainly won’t pass one. Unless Obama is going to send in the National Guard to force States to perform SSM at the point of a bayonet a little over a year before the next presidential election, there’s not a whole lot of downside for States to defy the Supreme Court should they decide to create a new “right” to SSM.
You mention that if gay Justices are biased, then straight Justices are biased...and that brings up Justices who ruled on the Free Speech applies to pornography cases. They must all have been secretly biased.
The Zealots at Qumran had themselves a similar problem. Everybody they knew in Jerusalem was biased...except for themselves of course.
Thorely,
That's a terrible direction for this country to go in. However, we are already on that path. Marijuana? The Supreme Court has already upheld the constitutionality of federal drug laws. Yet these states ignore that.
Republicans and conservatives are loathe to behave in this way. But I think its time we start.
And I sincerely wonder what would Jesus do?
He'd probably comment something along the lines of that was rather refreshing, actually.
Just a guess...
Althouse: "It's not harmlessl to the reputation of Louisiana."
Oh, nonsense! Reputation with whom and for what? A reputation with intellectual elitists and pretentious lefties for ignoring secular progressive judges with a penchant for politicizing cases?
How about instead a reputation with their constituents for pulling out the stops and demanding justice for a cause they believe in? Lefties don't like "pull out the stops" politics from the other side. Here's hoping they get more opportunities to taste it.
Who would escape recusal?
If officiating at a gay wedding isn't enough to recuse you..what would?
Althouse: "And I sincerely wonder what would Jesus do?
Jesus, the Rabbi, would stop the stoning, decline to perform the wedding and tell the couple to go and sin no more.
I sincerely wonder about the meaning, origin and applicability of the term "prejudice" in this context.
Gahrie said...
If officiating at a gay wedding isn't enough to recuse you..what would?
How about belonging to a religion that says a marriage is only between a man and a woman?
In terms of recusal:
My feeling is that anyone qualified to be on the Supreme Court should have the ability to differentiate between their policy preferences and what the constitution requires, along with the integrity to base their rulings on only the latter.
I believe several people on the current court are not qualified to be there. But that's not an issue for recusal.
That's a terrible direction for this country to go in. However, we are already on that path. Marijuana? The Supreme Court has already upheld the constitutionality of federal drug laws. Yet these states ignore that.
Republicans and conservatives are loathe to behave in this way. But I think its time we start.
I wonder if Chief Justice Roberts has spoken with Justice Kennedy (who will probably be the deciding vote) on what will happen to credibility of the Court should this be their Roe vs. Wade. They still are still the weakest branch of government and only have power to the extent that rest of us agree to it and that Congress and the President enforce their decisions. If the people defy the courts and the others branches refuse to or are unable to enforce the Court’s decisions, it undermines them greatly.
I don’t like the path we’re on but it’s hard to argue after Obama decided to create amnesty by executive order, refuses to enforce the ACA when part of it might prove unpopular right before an election, etc. that Republicans won’t at some point decide that they’re being played for suckers by following the rule of law even when they disagree with it. It only works when there is a clear consensus is that everyone has to play by the rules. When that’s no longer the belief, it falls apart.
eric said...
Marijuana? The Supreme Court has already upheld the constitutionality of federal drug laws. Yet these states ignore that.
The states ignore the federal marijuana laws because they are federal laws, up to the federal government to enforce. Anytime the federal government wants to enforce those laws it can, including subpoenaing state records for all of those state-licensed dispensaries.
The states were never under any obligation to enforce those laws.
So we're ok with the appearance of conflict now? I bet Hillary is counting her lucky stars. But that's what they sent Stephanopoulos out to argue this week, eh? Appearances don't matter.
However, we still discipline officers for fraternization with enlisted, even if no romantic conflict takes place. We still forbid officers from gambling with their troops.
It's obvious that there is an appearance of conflict, and that's a problem. It's not like the vote in Louisiana was close. The Democrats have always been all about court packing, when they can get away with it.
The Gays and the party that booed the Boy Scouts presenting the American Flag at their own convention are determined to have their Kangaroo court, and are willing to throw every principle overboard in order to get it.
This is voter business. Not court business. Trying to do an end run around the deliberative legislative process has already led to all kinds of absurdities and clusterfucks. Courts and even executive branches are not equipped, designed or staffed to map out and anticipate and mitigate the consequences of their rulings.
@eric
You keep saying "gay sex." It makes you sound unhinged.
Ann,
If you think I'm unhinged now, wait until some unelected judges write into our constitution that gay sex marriage is a right.
Ignorance is Bliss wrote;
The states ignore the federal marijuana laws because they are federal laws, up to the federal government to enforce.
That's right.
And the States should let the Federal Government marry the gays.
The states ignore the federal marijuana laws because they are federal laws, up to the federal government to enforce. Anytime the federal government wants to enforce those laws it can, including subpoenaing state records for all of those state-licensed dispensaries.
The states were never under any obligation to enforce those laws.
That is largely true, although I suspect that people who live in States that have decided not to enforce federal drug laws will be quite surprised the day that they learn that marijuana is not in fact legal. States can refuse (under current Tenth Amendment jurisprudence) to use their resources to enforce federal laws but they can’t nullify federal laws per the Supremacy Clause. Also the federal government can withhold federal funds in certain circumstances from States that refuse to enforce federal laws.
This whole tiresome debate about gay marriage makes me feel like Joni Mitchell… Like I am being eaten alive by parasites living under my skin.
I wish Martin O'Malley would throw them all in jail. All of them, from both sides, in a mass arrest for the ages.
How about belonging to a religion that says a marriage is only between a man and a woman?
You mean the default position of Western civilization?
If the Founding Fathers had thought for a second that this issue would have ever come up, they would have defined marriage as between a man and a woman.
If the Republicans who wrote the 14th Amendment had ever realized that their work would result in massive illegal immigration and the idea that there is a right to gay marriage, they would have explicitly prohibited such intrepretations.
But to answeer your question, I am perfectly fine with all nine justices recusing themselves from this case.
I usually have great respect for your opinions on matters legal. However, in this situation, you are showing a huge blind spot. Two justices marry a gay couple. First, if it is legal where the ceremony was performed, chances are that it was made legal by an unelected justice, not by the will of the people.
A judge tipping his grounds for recusal. But you don't think officiating at guy wedding does that?
Would a judge being found to support prop 8 with money be grounds for recusal? Or a sign that they might be tipping their hands?
"Maybe she just treats all her former law clerks the same."
Professor, come on. You're smarter than that. This is an equal protection case we're talking about. "I'm just treating them the same" is nothing more or less than an admission you've already decided the issue -- that equal treatment requires the action.
"And the States should let the Federal Government marry the gays."
What? Now even the Federal Government is gay? Wow, they really ARE taking over!
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