28 U.S.C. § 455 (a) states, “Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”
This is not legally applicable to Tennessee circuit court judges, but I would be surprised if the Tennessee judicial ethics rules differ. Under this standard, the judges did the right thing.
It is a separate (though equally valid, IMO) issue to question whether said judges should have sought appointment/election to the bench in the first place if they knew they would be unable to apply the law regardless of their moral beliefs.
But that isn’t really what they’re doing. Abortion is the controversial issue of our time, and for those who hold the anti-abortion view, abortion is murder. I am very wary of the slippery slope this could engender, but how in good conscience can we demand that judges with sincere good-faith beliefs that abortion is murder participate in what they believe to be the murder of innocent children? I don’t think we can.
The alternative, allowing only people on the bench who agree with every jot and tittle of the law as it stands, is not only impossible and deeply unamerican, it also leads to a parade of horribles just as long as the one you put forth.
But is a moral objection to the law really what this is supposed to refer to? Isn’t this kind of thing intended to apply to cases where a judge has a conflict of interest in a specifuc case, not in a specific law?
If this kind of statute is meant to apply to cases where a judge has a moral objection to the law then wouldn’t that mean that no pro-lifer could ever hear an abortion rights case?
No, that isn’t the only alternative. Judges can set their own personal morals aside and ask themselves what the law is, not what they wish the law were. I suspect that every judge has to do this at some time in his/her career.
Wasn’t it Thurgood Marshall who instructed his law clerks not to bother him at home if someone called to get a stay of execution for the death penalty, but simply to grant it automatically?
Much the same kind of thing from Rose Bird, who never voted to uphold any death penalty appeal in California.
Would you all agree that both these jurists should have been impeached and removed from the bench, for not considering the law but reacting automatically?
I’m split on this… but if every judge considers himself moral objecting to abortion that might stop that girl from exercising her right to an abortion.
Its a direct issue… is she mature enough. Yes or No. Abortion is her decision. So these judges are politicizing the issue needlessly and are wrong. Slap 'em on the wrist before this runs amock.
Actually, the thing that truly bothers me is that (according to the article in the OP) the judges were “floored,” were full of “shock” and “surprise,” and “had no clue” about the law or their jobs.
Yep. Any reason why the judge cannot be impartial - or whose impartiality can reasonably be questioned - is a sound basis for recusal.
Nope. If pro-life judge X can say, “it’s my job to apply the law, regardless of whether I like the result,” than their is no reasonable grounds on which Judge X’s impartiality can be questioned.
That was not the case here. Here, the judges said, “I cannot apply the law”. That’s grounds for recusal (and may well be grounds for them resigning, if they had any self-respect).
I think the judges should have considered this issue before picking this career. Though I never had a job related with justice in any way, I already considered it and thought I couldn’t be a judge for the reason we’re discussing about (not abortion, but conflicts between my morals and laws). Shouldn’t have any judge done the same before applying for the job? And in the case of these judges, picked another career?
Lacking that, it seems to me that the logical decision is resignation, not recusing themselves.
Unless they choose to become activist judges who will use their moral beliefs rather than the lawas a guideline. This might not be an option people would approve (at least not in usual circumstances) , but at least, it’s thought-off. Suddenly thinking after X years of being a judge : “Heck!! Nobody ever told me that I would have to apply a law I dissaprove!!!” doesn’t make sense (at least in the case of a morally objectionnable law which has been in the books for a long time).
Well, not to hijack this thread, but I guess I was too strict in saying they shouldn’t have any say. But do you honestly think parents should be able to force a child to get an abortion, assuming that she is medically able to carry child to term? If not, where do we draw the line? Can they force their 11 year old daughter, but not their 12 year old? Many tricky situations arise, and they don’t need to hijack this thread any further.
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No, as I said before, I do prefer them not presiding over the cases at all, however, they shouldn’t be allowed to just pick and choose what cases they want, even if they are honest about it. What if judge were to say,
“Keep me as judge! I won’t ever try any cases involving murder or drugs, but hey, at least i’m honesrt about it!”
Granted, that’s an absurd situation not likely to happen. But here we already have two judges refusing to hear these abortion cases. What if the other judges all retire, or move to a different court, or what have you, and the remaining spots are then also filled with pro-life judges? They see their colleagues refusing cases on moral grounds, and they do the same. Suddenely, no minor in Tennessee can get an abortion if their parents say no. It sets a bad standard to follow, and the judges need to decice whether they can set aside their morals and follow what the law says, or step down as judges of these courts. I’m sure there are other courts they can go to where they won’t have to try cases like this that test their morality.
Assuming that your version of the facts is correct: Both sat on Supreme Courts. They were not trial judges. The job functions are different. For a justice to grant a stay just gets the appeal heard by the full court instead of a single judge, and wouldn’t you think that’s a *good * thing? Note as well that the death penalty was held to be unconstitutional for much of their tenures in office. The default case for the rest of the time isn’t necessarily “Let 'em fry”, but maybe “Let’s think about this one a little”.
No, you are incorrect. The job of a judge is to decide on the legal aspects of (in these cases) the merits or otherwise of appeals. Neither Bird nor Marshall did this - they simply did what they could to prevent any executions from occurring.
Or are you saying it would be fine with you if the two judges of the OP simply refused every request of a minor to obtain an abortion without considering anything about the case? That would OK, right? And you would have no more objection to their continued presence on the bench than you did for Bird and Marshall.
So any appeals judge who automatically denies a request from a minor, sight unseen, is doing his job, right?
Do you have a cite for an appeal from the death penalty that reached Marshall or Bird during the time the death penalty was considered unconstitutional?
No, their default was not to think about it at all - simply to vote to overturn or grant the stay, automatically and mindlessly, without regard to the merits of the case.
I assume you would agree that a judge who automatically rejected every appeal from a minor to get an abortion is fulfilling his duties completely. Right?
I think you have to prove that they ignored the law and made decisions based only on their own morality. One can have those suspicions about any judge’s decision but as long as the judge renders a decision which at least adheres to the form of legal interpretation, it’s virtually impossible to prove. You might be able to make an argument in the examples you cited (and I might counter with Bush Vs. Gore :p) but it’s a different issue than whether judges should be able to select what cases they will or will not hear based on their opinion of the law. If a judge says that she will not hear death penalty cases that judge is refusing to do her job. If she hears them but consistently finds a way to render a decision which reflects her own moral opinion, it’s a problem but it’s an unpoliceable problem. If they aren’t doing anything patently illegal and as long as they are making some semblence of a legal argument for their decsions then there isn’t much that can be done about it. I’m not saying they wouldn’t be bad judges but it’s a different level of bad than if they refused to do their jobs at all.
So if these judges shut up, heard every parental notification case, and decided in each and every one not to grant the minor’s petition, your feeling that this a better solution than recusing themselves?