Hamilton County (Ohio) prosecutor Joe Deters, in response to Ohio Supreme Court justice Paul Pfeifer’s recent comment that the death penalty system is “broken” and should be scrapped, sent out letters to prosecutors and judges across the state questioning whether Justice Pfeifer can be “fair to both sides,” and suggested that he be removed from any decisions involving capital punishment.
Putting aside from the moment the wisdom of initiating a letter-writing campaign against a sitting high court judge behind that judge’s back…
Pfeifer responded that his personal opinion notwithstanding, he’s perfectly capable of impartially applying the state’s laws to his decisions.
Over in New Jersey, Governor Christie has appointed Bruce A. Harris to that state’s Supreme Court. Christie, an opponent of same-sex marriage, says that Harris — who is gay, and has spoken out in support of same-sex marriage — will recuse himself from any cases involving that issue. It’s not clear whose idea this was, or whether Harris agreed to recuse himself in exchange for the appointment.
Harris is also black. Will he be expected to recuse himself from any cases involving racial matters? Surely at some point in his life he’s expressed an opinion on race in America.
Should we ban from any case involving abortion any judge who’s impregnated a woman, made the conscious decision not to impregnate a woman, given birth to a child, or taken steps — before or after conception — not to give birth to a child? Surely all of these people have have expressed, in word or in deed, a strong opinion about procreation.
What makes Pfeifer’s and Harris’s possible recusals particularly odd is that no judge comes to the bench with a clean slate; and today more than ever, no candidate for a high court goes through the approval process without every minute aspect of his or her private life being reviewed, and every speech made or decision handed down being scrutinized. When Sonia Sotomayor was being grilled back in 2009, it’s likely that the Senate learned things about her that even Mr. Sotomayor didn’t know.
So in this time of judicial over-disclosure, what level of involvement in an issue should call for recusal?
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© 2012 by Bill Bickel unless otherwise noted.
Some people believe that humans–complex and flawed as they are–are incapable of understanding multiple sides of an issue and then judging and acting fairly even when that means acting against their beliefs on the issue. The people who hold this view seem to be the ones who take a hard line on who gets to be make decisions.
I wish I could understand that point of view, but to me it just seems like a sad view of humanity.
But even so, why these people with these cases? Even if you accept that reasoning, wouldn’t they also ask married judges to recuse themselves from family-law cases? Ask female judges to recuse themselves from gender-equity cases?
If a heterosexual judge can rule on heterosexual marriages why can’t a homosexual judge rule on homosexual marriages?
To be fair, there’s more to this than “Harris should recuse himself from gay issues because he’s gay.” That argument is stupid (and I’d be willing to bet a fair amount of money that the 9th Circuit will call it out as stupid in their ruling on Judge Vaughn in California’s Proposition 8 case).
However, publicly advocating one side on an issue and then ruling on it a relatively short time later could create an appearance of impropriety. Other judges could reasonably take a different view, and not recuse themselves, but recusal doesn’t strike me as crazy under these circumstances.
I always thought that judges were people who could set aside their personal beliefs and opinions and just stick with the facts and the law. Granted, judges nevertheless get labeled “liberal” or “hanging”, but no one’s asked them to recuse themselves because of that. So if politics or personal interpretations don’t make a judge recuse himself, why should race, gender, or sexuality?
As generally applied, a “hanging” judge isn’t one who conducts the trial in such a way as to make the defendant more likely to be found guilty (which would be bias), it’s a judge who, after the trial is completed, generally hands out sentences at the harsh end of the scale.
Meanwhile, “liberal”, as applied to judges, actually encompasses several different meanings, including the opposite of a “hanging” judge… a judge who, after the trial, gives sentences towards the low end of the scale.
Differences in judges is why there are sentencing guidelines at the federal level (and in many states) and also mandatory minimum sentences in many states.
The category you didn’t mention, “activist” judges, are those who intentionally go beyond the statutes in making rulings (this is a touchy subject, as people on the conservative side of politics tend to assume that “activist” judging only occurs amongst liberal-leaning judges/Justices, but in actuality it is fairly evenly split.)
An activist judge actually may actually change the course of the trial, while the other two categories don’t.
Thanks, James. I didn’t know those kinds of judges had a name. Their rulings are often the most interesting because they can change behavior (and future rulings).
My thoughts would be that if a judge has publicly taken a stance on a controversial topic he’s probably not suited for a case on it.
The problem with the “I’m capable of managing the law despite my views” idea is that the whole reason judges exist are because laws aren’t cut-and-dried and need *judgement* to be applied: his bias will cause the law to be applied in ways differently than a neutral judge (not that such a thing exists).
A bias that is known can be compensated for. Since most courts have at least one court above that can review the legal rulings, and, if appropriate, reverse them, bias usually isn’t really an issue with people who have a judicial temperament in the first place. The danger is biases that the judge doesn’t actually realize that they have.
The recusal rules appear to be pretty much limited to cases where judges have personal stakes in the outcomes and/or relationships with participants, rather than just (even publicly proclaimed) views, and in cases where it’s a judgement call (and their choice, as for SCoTUS), they often seem to choose not to recuse. Otherwise, how could (for example) Scalia rule rather than recuse on an abortion case or in the case involving Cheney? I would think those are closer to this case than merely is the judge gay or black (analogous to that would be to automatically forbid any Catholic judge from ruling on abortion).
The recusal rules include cases where the judge has made statements that might cause the appearance of impropriety or partiality. So, for example, Scalia recused himself from the Newdow case (Pledge of Allegiance case) after making public statements about “under God” in the Pledge of Allegiance. This recusal seems analogous.
Scalia has publicly stated he believes Roe v Wade should be overturned – should that not imply then that he would have a partiality in _any_ abortion case? Yet no one (well…) seems to believe he should recuse from all such cases.
Every case is different, so even publicly stating that a judge (or judicial nominee) would have decided a previous case differently doesn’t necessarily suggest a conflict for other, similar cases.
That said, although the Constitution gives great latitude to the judgment of Article III judges, and insulates them to a great degree from the whims of the other branches (as opposed to the carefully considered, deliberate actions of the other branches) it does NOT insulate them entirely. Article III judges serve for life… with good behavior. A pattern of refusing to recuse can get them impeached and removed from the bench. (Plus, at the lower levels, judges usually report to a supervising judge who decides what cases, or what KINDS of cases, a judge hears.)
Ted, that’s a valid point, but I think the level of specificity is important here. If Scalia publicly stated that law X in state Y regarding abortion was clearly constitutional, I think people would believe he should recuse himself from that case. Bruce Harris’s statements advocating gay marriage strike me as somewhere in between the “law X” statement and the “Roe v. Wade should be overturned” statement, making recusal seem not obviously required, but not crazy, either.
Why the specific statement by a judge triggers the appearance of partiality, while the general statement that implies the specific statement does not is perhaps a little mysterious. After all, even before Scalia made any public statements about the Newdow case, it was obvious from his previous general writings (on and off the Court) about the Establishment Clause that he was going to rule against Newdow. But my point is that for whatever reason, the standard is that the specific statement is considered more troubling.