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.