The Next War on The Judiciary

It appears a new front has opened up in the war on the judiciary. Apparently, judges have taken a cue from the knucklehead pharmacists for life and are choosing to simply refuse to deliberate cases in which they disagree with possible outcomes for moral reasons:

A pregnant teenager went to the grand and imposing county courthouse here early in the summer, saying she wanted an abortion. The circuit court judge refused to hear the case, and he announced that he would recuse himself from any others like it.

“Taking the life of an innocent human being is contrary to the moral order,” the judge, John R. McCarroll of Shelby County Circuit Court, wrote in June. “I could not in good conscience make a finding that would allow the minor to proceed with the abortion.”

The teenager was in court because Tennessee, like 18 other states, requires minors to obtain a parent’s permission before they can have an abortion.

But the state also allows another option. The teenagers can ask a judge for permission to decide for themselves.

Judges, however, are starting to opt out. Other judges of the Shelby Circuit Court have recused themselves like Judge McCarroll, and now, according to one judge, only four of the nine judges on the court hear such abortion applications.

Judges in Alabama and Pennsylvania have also said they will not take such cases.

The actions, similar in some ways to pharmacists’ refusal to dispense drugs related to contraception or abortion on moral grounds, have set off a debate about the responsibilities of judges and the consequences of such recusals, including political ones when judges are elected rather than appointed.

Judge McCarroll’s decision prompted 12 experts on judicial ethics to write to the Tennessee Supreme Court in late August. The experts called his action lawless and said they feared that his approach could spread around the nation and to subjects like the death penalty, medical marijuana, flag burning and even divorce.

“Unwillingness to follow the law,” the letter said, “is not a legitimate ground for recusal.”

Fabulous. Just what we needed. This brings a whole new dimension to the impartiality debate:

“I didn’t swear to uphold all of the laws of Tennessee except for X, Y and Z,” Judge Bailey said. “You’re sworn to uphold the law whether you agree with it or not.”

He said he worried that the varying approaches of the judges at his court could have political consequences.

“I hope that how I handle these questions of allowing these young women to get abortions does not lead to my defeat in the next election,” in 2006, he said. “If it does, so be it. I can’t keep a job constantly fearing that I’m going to lose it.”

Judge McCarroll was on vacation and did not respond to several requests for an interview through the court, his clerk and an e-mail message. In his statement, he said that recusal was not only appropriate, but also required.

“A judge should recuse himself or herself,” he wrote, “if there is any doubt about the judge’s ability to preside impartially or if the judge’s impartiality can reasonably be questioned.”

Just another thing to keep your eye on, and while there is no religious test allowed, it will be interesting to see how, in the matter of appointments, judges will be vetted to determine whether or not they will address these issues.

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22 replies
  1. 1
    Flint says:

    There only “activist judges” if they rule they way that you don’t want them to.

    Actually, they take an oath to uphold the law and if they aren’t capable of doing that then they should be dismissed summarily and not wait until elections occurr. To wait is to invite anarchy and above all… the rule of law must prevail.

  2. 2
    Bruce from Missouri says:

    And of course we are going to hear law and order republicans calling for the impeachment of these judges?

    Right?

    Right?

    oops, silly me.

    The law only matters when it’s convenient for the republican side.

    Bruce

  3. 3
    jobiuspublius says:

    If judges recuse themselves for religious reasons, then, what does it imply about their reasons for not recusing themselves? American “sharia” by implication? A two court system like what’s sloppily being proposed in Iraq?

  4. 4
    Demdude says:

    I’ve been very torn on this issue. I believe that in this country, people have the right to their beliefs. They should not be forced to do things that go against their principles. But at some point, you are creating a very segregated society (not racial, so no race crap folks). People that only handle A-M. What happens to N-Z? Where does it stop?

    Having said that, one of the good things the nuns taught us in school was “they aren’t really principles if you abandon them when they cost you something”. If the job I had required something I couldn’t in good conscience do, I would not have that job. Conscientious Objectors do not go into the military and say, “I’ll join, but I don’t want to hurt anybody”. The whole purpose of the military is to hurt someone.

    At some point you have to draw the line, this sure seems like a good place to me.

  5. 5
    docG says:

    It is imperative that judges and politicians feel free to use their own moral and/or religious convictions in helping guide their work. These convictions should, however GUIDE their thinking, not BE their thinking. A professional must be able to serve a larger public than just those that agree with or behave according to their personal views. Publically funded professionals, such as judges, must serve all who come before them, recusal being for conflict of interest, not conflict of values.

    1. Don’t accept a job that you morally cannot do.
    2. Adopt a sort of “three moral recusals and you’re out” policy. Courts are usually swamped; if you won’t do the job, get someone who will.
    3. Vetting for religious beliefs is unacceptable.
    4. Vetting for willingness to actually do the job is essential.

  6. 6
    Zifnab says:

    And of course we are going to hear law and order republicans calling for the impeachment of these judges?

    I suspect the Republican radicals and their FRC flunkies will be cheering the honor and wisdom of the courts for refusing to partake in legitamizing the entirely legal act of abortion. Because running from a politically disadvantagous court hearing is what Jesus would do. After all, there’s nothing unAmerican or unChristian about clogging up the beaurocracy for your own ends.

  7. 7
    ape says:

    JC –

    there is nothing ‘new’ about this issue. It’s already imbued within the US justice system.

    Everybody knows about it in the case of the Death Penalty.. there are all kinds of rules about Juries views on it, and also for judges to some extent..

    this article explains: http://papers.ssrn.com/sol3/pa....._id=781344

  8. 8
    Stormy70 says:

    The Judge should resign. He was sworn to uphold the law, and if his personal beliefs are counter to that law, then he needs to go into private practice.

  9. 9
    SeesThroughIt says:

    Judge McCarroll is a douchebag and the picture-perfect definition of an activist judge. Judge Baily is what a judge is supposed to be. Now watch as America gets overrun by its McCarrolls.

  10. 10
    norbizness says:

    Let’s be fair, this is “judicial passivism.” I know the word’s passivity, but we need rhymes.

  11. 11
    ape says:

    stormy 70 –
    judges who have a problem with the death penalty recuse themselves rather than resigning.

    why is this different?

    on the case itself: why should anyone have to ask someone else what should happen in their body if it is agreed by all that this will not affect anyone else’s body?

    since most people think that abortion is bad (that’s why the christian right and the ‘liberal’ left is so united in support of contraception and sex education!); and most think it’s worse the longer the pregnancy has gone on, can’t (almost) everyone agree that putting extra legal hurdles in front of a girl who has made her choice, and in so doing extending the pregnancy, is wrong?

    Further – how does this law deal with the strong possibility that a pregnant child has been made pregnant by a family member, such as her father?

  12. 12
    docG says:

    ape Says:

    stormy 70 – judges who have a problem with the death penalty recuse themselves rather than resigning.

    why is this different?

    It is not different, both are equally wrong. If you are morally opposed to sex outside of marriage, being a hooker is probably a bad career choice.

  13. 13
    Mike S says:

    1. Don’t accept a job that you morally cannot do.
    2. Adopt a sort of “three moral recusals and you’re out” policy. Courts are usually swamped; if you won’t do the job, get someone who will.
    3. Vetting for religious beliefs is unacceptable.
    4. Vetting for willingness to actually do the job is essential.

    Dead on comment.

  14. 14
    Mark-NC says:

    John:

    You speak as if you are against this trend, but this seems to me to be exactly where the Republican Party is taking the country.

    This is – in effect – what you vote for when you vote Republican.

    As far as being vetted, I’m assuming they will be – in the direction of making this worse!

  15. 15
    UNCoRRELATED says:

    Judging Judges

    Given today’s announcement that Roberts will be filling in as Chief Justice, instead of an Associate Justice on the Supreme Court, it’s interesting to read Adam Liptak’s piece in today’s New York Times.

  16. 16
    Steve says:

    Gotta agree with Mark-NC.

    You vote for these fools, then you support this nonsense. No two ways around that.

  17. 17
    tom scott says:

    Flint sez: “Actually, they take an oath to uphold the law and if they aren’t capable of doing that then they should be dismissed summarily and not wait until elections occurr (sic). To wait is to invite anarchy and above all… the rule of law must prevail.”
    So how do you feel about jury nullification? For that matter, how about the civil disobedience of Thoreau, Ghandi, or MLK?
    “and above all… the rule of law must prevail.”
    Why yes, Judge, that runaway slave should be hung-it’s the law of the land.
    Just asking.

  18. 18
    jobiuspublius says:

    Ah, but, I suspect that there is no basis in American law for slavery. So, America was in violation of it’s own laws. Also, add that the states were, basically, deciding citizenship. Correct me if I’m wrong, but, the states have no right to decide that. Also, the claims that africans are not human was, ah, kinda super wrong.

  19. 19
    Shygetz says:

    The idea that this is a nation of laws is crap that is promulgated by the lawyers, in my opinion. This is a nation of the people (and by the people and for the people, I might add). That is why jury nullification is still legal (although the lawyers have rigged it so a juror can’t know that it is legal). That is why cases are decided by a jury of your peers, rather than an expert on the law. The law is a framework by which we attempt to rule ourselves fairly and consistently, but every rule has an exception. Sometimes, law does not equate with justice. That is what a jury is for-to ensure that this remains a nation of the people, and not a nation of laws. Yes, the people sometime make terrible mistakes (such as jury nullification for racial crimes cases), but even so, they are mistakes for the people to make.

    Sorry for the rant, but this issue just unleashes the libertarian in me.

  20. 20
    Don says:

    Flint sez: “Actually, they take an oath to uphold the law and if they aren’t capable of doing that then they should be dismissed summarily and not wait until elections occurr (sic). To wait is to invite anarchy and above all… the rule of law must prevail.”

    So how do you feel about jury nullification? For that matter, how about the civil disobedience of Thoreau, Ghandi, or MLK?

    I must have skipped the part in their bios that details how they took jobs adjudicating on those laws they were disobeying and took oaths promising to uphold the law.

  21. 21
    Brian says:

    http://ownedbycats.blogspot.co.....ivism.html

    What, a NON-New Orleans post? Can it be?

    Balloon Juice brings us this cheery little story:

  22. 22
    Mike DeMoss, Attorney says:

    Re: An Open Letter to the ABA and the Judiciary – Due Process and Equal Protection

    Dear Members of the Judiciary and the American Bar Association:

    For over twenty years I have served as a Referee in the Hennepin County Conciliation Court and have come to appreciate the need to provide every claimant their “day in court”, even when the claim appears to be of little consequence.

    The purpose of this letter is to bring to the attention of the Judiciary, and the American Bar Association, an area of the law that has gone unattended.

    Briefly stated, the court should be appointing an attorney to represent the unborn child whenever a hearing is held to grant a parental / judicial bypass for underage girls who are seeking to obtain abortions without parental consent.

    Under current law, an unborn child is entitled to many rights, benefits and protections as a result of State and Federal laws; and, because of this, there appears to be a conflict of interest for a State Court to grant an abortion (which defeats these rights and benefits) without legal representation being provided to the prospective recipient (the unborn child).

    PROBATE: Specifically, an unborn child may have certain rights, through inheritance, that are being terminated by the abortion procedure and this would require independent legal representation for the unborn child.

    CRIMINAL LAW: Some underage girls are victims of rape and are coerced by the male perpetrator to seek an abortion. In the case of a rape, statutory or otherwise, an abortion effectively destroys evidence.

    Constitutional, State and Federal laws, as well as case law, support the need for due process and equal protection under the law; and I will briefly summarize why (at the very least) the appointment of counsel is necessary in order to provide justice for all.

    Constitutionally speaking, as illustrated in the following cases, the right to receive Due Process and Equal Protection under the law is uniformly acknowledged in cases that affect rights which are less important than the right to life. Life, as a fundamental inalienable right, guaranteed under the Constitution, deserves at least the same treatment and protection.

    Goldberg v. Kelly, 397 U.S. 254 (1970) in which the Supreme Court held that benefits to a welfare recipient may not be terminated without a prior hearing. (Due Process)

    Plyler v. Doe, 457 U.S. 202 (1982) in which the Supreme Court decided that the Fourteenth Amendment guarantees equal protection of the law to aliens illegally in the United States.

    If, as in these cases, an illegal alien has a right to equal protection of the law even though he is not a citizen and therefore technically not a “person”, and if a welfare recipient’s benefits cannot be terminated without a due process hearing; then, in order to protect a “Fundamental Right” (Life), we cannot legally deny equal protection of the law and due process to the unborn individual who has rights recognized in so many other areas of the law.

    There is no logical justification for the exception that abortion has under the law.

    MEDICAL CARE: Judicial notice can be taken with respect to the fact that the unborn child is a person in the field of medicine and science. Every Medical Doctor acknowledges that a physician has two patients when treating a pregnant woman: the mother and the baby; and an unborn child has a right to bring an action for malpractice against a doctor who injures or kills the child during gestation. Every ultra-sound technician can describe the head, hands, feet and vital human organs of a baby growing in the womb.

    It follows that every Judge has two parties in the court during a Judicial Bypass hearing, the mother and the unborn child.

    It is of some assistance in the examination of this issue to recall that the Declaration of Independence states: “All men are created equal”. The signers of this Founding Document did not say: “All men are born equal”.

    It becomes quite apparent that we are dealing with a classic “Fundamental Right”, a “Suspect Class”, and a requirement for “Strict Scrutiny” in our Constitutional analysis.

    Every generation of lawyers and judges is called upon to challenge public opinion in order to reveal the truth, reverse an injustice, and protect the innocent.

    In the nineteenth century, slaves were considered to be mere property, without any rights. Through the courage of lawyers and judges of that era, an injustice was reversed.

    The twenty-first century has an equal challenge in overcoming public opinion which, through Roe v. Wade, has denied the unborn child the fundamental right to due process and equal protection under the law.

    Reversing this injustice is the challenge that faces the lawyers and judges, and the American Bar Association, in the new millennium.

    Please take this under advisement and respond to me in writing explaining the positions that the Judiciary and the American Bar Association hold with respect to these issues.

    Respectfully,

    Michael C. DeMoss
    Attorney at Law

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  1. UNCoRRELATED says:

    Judging Judges

    Given today’s announcement that Roberts will be filling in as Chief Justice, instead of an Associate Justice on the Supreme Court, it’s interesting to read Adam Liptak’s piece in today’s New York Times.

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