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.