Should judges refuse to decide cases they have a moral objection to?

[Diogenes_the_Cynic]

@Bricker

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?

No. My opinion is that they should resign. Shodan said they should be impeached and removed. I’m saying that if a judge does not actually admit to making decisions based on personal morality rather than law, then there isn’t any way to prove enough malfeasance to impeach them. A smart judge can always find a way to couch his decisions in enough legal interpretation to allow himself some plausible deniability. A judge who comes right and and says, “I can’t enforce this law because it’s immoral” is admitting that they can’t do their job and IMO they shouldn’t be permitted to return to the bench.

[Loopydude]

I’m torn. On the one hand, you’d want a judge to be honest about a real conflict of interest, which might well include a deeply-held moral position. Some pro-life judges can handle the opposing forces of personal conviction and the need to respect precedent and the judgements of higher courts. Some, evidently, cannot. They may as well fess up.

However, so as to prevent this from becoming the dreaded Slippery Slope, perhaps some very high guardrails need to be erected. Not everyone can get out of combat duty when conscripted because they “don’t like killing”. The standards for conscientious objection are exceedingly high. Perhaps some other exacting set of standards could be contrived for “conscientious recusal”, which, if not met, would leave no other alternative but resignation or impeachment.

[Hamlet]

@Shodan

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?

Regards,
Shodan

I don’t know Rose Bird, but Marshall, and Blackmun too, did not oppose the death penalty simply because of a moral choice, they both made it clear that they thought it was unconstitutional. That’s a huge difference from the allegations you appear to be making.

[Muffin]

@Bricker

Wait a second.

Several people have argued here that a judge who interprets the Constitution should look BEYOND the law and facts, and find justice. A judge who reads the Constitution just for the facts won’t find the right to abortion there in the first place. It was judges’ ideas of morality and decency, justice and democracy, that brought about the Roe v. Wade decision in the first place. That’s the right decision not because the text of the Constitution says it, but because we can know the SPIRIT, the underlying essence, of the Constitution, informed by our evolving standards of a decent society.

Isn’t that right?

Yes, that is right. And such decisions can be appealed.

If a judge develops a pattern of being repeatedly overturned on appeal on a particular issue, then it is time to sweep the bench clean or move the judge to an area that never involves that type of law (although I expect that that often would not be possible).

[Blalron]

@Diogenes the Cynic

No. My opinion is that they should resign. Shodan said they should be impeached and removed. I’m saying that if a judge does not actually admit to making decisions based on personal morality rather than law, then there isn’t any way to prove enough malfeasance to impeach them. A smart judge can always find a way to couch his decisions in enough legal interpretation to allow himself some plausible deniability. A judge who comes right and and says, “I can’t enforce this law because it’s immoral” is admitting that they can’t do their job and IMO they shouldn’t be permitted to return to the bench.

Your approach only encourages intellectual dishonesty. I’d rather the judges recuse themselves then be afraid to admit they are too biased in a particular case.

[Fear_Itself]

@Blalron

Your approach only encourages intellectual dishonesty. I’d rather the judges recuse themselves then be afraid to admit they are too biased in a particular case.

So what about the judge who holds moral positions against legal abortion, and the death penalty, and legal assisted suicide, and legal pornography, and legal flag burning, and legal medical marijuana? Should they simply recuse themselves from all these cases that offend their morals? When is enough enough to expect them to step down?