On Moral Grounds, Some Judges Are Opting Out of Abortion Cases

If a judge believes his/her personal opinions will affect how he/she will rule, then perhaps it is a good thing that such a judge recuses him/herself. It's too bad left-wing judges don't follow this sensible and ethical position.

Åny public official whose personal beliefs differ so strongly from established law, particularly a judge, should remove him or herself from the possibility of violating the law to promote those beliefs. Recusing yourself from cases isn't quite enough. If you can't support the law of the land, you shouldn't put yourself in a position to be its arbiter. The judges in question should resign.

Uh huh. Of course, if a judge personally believes something is in the Constitution that clearly is not, like, say...abortion, he can remain.

Oh! The hypocrisy!

Didn't the Bill of Rights (Amendment 10?) state something to the effect that the rights named therein were not necessarily all the rights? Therefore, knowing that the framers were smart enough to realize they couldn't be omniscient and know every right that would be viewed as critical in the future, why shouldn't a later court state that they see privacy as one of the rights that the framers did not explicitly include under the loophole that was put there for a reason? And under the right of privacy, decide that abortion should be legal?

Maybe simpler, if the rights enumerated were not all-inclusive, isn't it the job of the courts to interpret the Constitution and see a right that the framers designed the loophole for?

Now don't all you lawyers go jumping on me at once, but I'm willing to learn.

Yes and no, dinger. The 10th Amendment, along with the 9th Amendment, are basically the amendments that deal with unenumerated rights and responsibilities. In laymen's terms, though, they don't say what you're interpreting them as saying; rather, they state that whatever is not specifically granted to the federal government by the Constitution belongs to the states. So, since abortion is in no way even hinted at by the Constitution, it would fall to the states to deal with it.

The Framers knew they couldn't deal with everything. They also were fearful of granting the federal government "all the other rights," so to speak. They believed that the states should be left with the responsibility of dealing with such matters.

These were the main reasons they created these last two amendments. In fact, in the debate on the Bill of Rights, these two amendments were critical. Had they not been included, it would have been quite probable that the Bill of Rights would never have been ratified by the states.

[ September 05, 2005, 10:33 PM: Message edited by: MIB ]

My constitutional law professor, Larry Tribe, could probably do a far better job of articulating the intricacies of the 10th Amendment than I ever could, but my basic understanding of it is that most of the recent cases dealing with the 10th Am. involve the power of the federal government to supersede state sovereignty. So I don't think it has much direct applicability regarding judicial recusals.

BUT, dinger, your post raises the general issue of a judge's ability to rule on state issues. Frankly, if a judge cannot uphold the controlling law of the land, I don't think s/he has any business being a judge. This isn't to say that a state or federal Supreme Court judge cannot ever overturn a law; rather, that lower court judges without such discretion are bound by the settled law, even where the issues are controversial, like abortion or the death penalty. I don't think religious or moral beliefs give a lower court judge justification not to do their job. Sublimating your own values seems like one of the prices you have to pay to hold such prestigious positions.

On the other hand, I have no problem with the personal political or moral beliefs of judges having some influence on the decisionmaking of judges, where judges have the discretion to uphold or overturn the law, such as on the Supreme Court. If a judge's race, gender, sexual orientation, or religion is a factor in the mental process, so be it. No one is a machine of pure objectivity. The only requirement is that the final decision comports with the state or federal constitution, where applicable. That's why it's critical that we have judges that reflect the diversity of the nation. Therefore I don't see a need for recusal in such instances, since this is different from recusing yourself due to real or perceived biases that would make the judicial system seem unfair (e.g. a judge's prior relationship with one of the parties in litigation).

Edited to add: dinger (and everyone else) please don't let the authority with which MIB or I may speak on the subject convice you that the law here is settled, or that there are clear answers. MIB states that abortion is not hinted at in the constitution and therefore within the purview of state authority. Without agreeing or disagreeing with him (since it's way past my bedtime) you should note that there are many opinions on this subject. For instance, many pro-choice defenders would argue that the due process clause of the 14th Amendment allows abortion (thus taking it out of state control). My point is that there is a reason why countless law review articles have been written on controversial issues like abortion, the death penalty, and gay rights. I don't want you or any other nonlawyer coming away from this thinking that my opinion, or anyone else's, is the final authoritative word.

[ September 05, 2005, 11:04 PM: Message edited by: Neptune ]

Ignoring the law - and I feel in this case it is necessary since these judges are choosing to do that - regulating bodies could forever ban fundamental rights from a document like say "The Declaration of Independence" by making laws that contradict it, and setting high - perhaps insurmountably for all intents and purposes - constitutional barriers to ever changing it; especially if the population size or culture are much different from the one in which the constitution was written, proscribing all rights.

What would you say to a judge who's firmly held belief is that the death penalty is cruel and unusual punishment? It's settled law of the land that it isn't.

It is the responsibility of judges and other government officials to uphold the law. If they don't agree with the law there are a number of options opend to them, recusing themselves from cases they don't like is merely the most cowardly.

It always disgusts me when abortion foes get on their high moral horse. No opponent of the death penalty has ever killed an executioner.

[ September 06, 2005, 09:19 AM: Message edited by: jqueer ]

Yeah, maybe they just need to quit - they're unable to perform their duties. If you take a job and then find you are unable to perform that job, guess it's time to look for new work that fits your personal needs and belief systems. Opting out of any work you determine you don't like is hardly fair to your employer, in this case, the American people. But if I can find work like this, where it is my own perogative to accept or not accept work assigned to me by management, let me know. Sounds like a dream position.

What do you typically do in a situation like this?
Do you recuse yourself?

I believe the Declaration of Independence has no legal standing beyond being the textual manifestation of this country's initial, formal break from Great Britain, which was eventually settled by war and then in international law by the Treaty of Paris in 1783.

Federal judges are supposed to uphold the federal Constitution, and state judges are required to uphold federal laws where applicable as well as state constitutional laws and valid local statutes, right? If a judge feels she cannot rule on a range of issues based on personal beliefs and biases, or cannot separate the personal from her supposed neutral position as an arbiter of the law, she should resign and find another post. Such as the practice or teaching of law, based on those beliefs. If the only law you follow is Biblical, you won't get far in US or most courts; I guess such people could study Islam and then move to Iraq, which will soon use the Holy Qu'ran as the basis of all its laws. There's also Pakistan, Saudi Arabia, Iran, Kuwait....

[ September 06, 2005, 11:18 AM: Message edited by: fantomas ]

from Neptune: wait a minute, let me read that again:
HA HAAA HAAAAA HAAAAAA HAAAAAAAAAAA
ROTFLMAO !! HAAAAAAA HAAAAAAA HAAAAAAA
OMG, I can't stop laughing......it hurts!
HAAAHAAAAHAAAHAAHAAAAA

Haaahaaahaaaa.....still can't stop.....haahaahaaa

I'm serious about that disclosure. I'm barely out of law school so no one really has any business relying on my legal expertise.

As to MIB, I don't know the back story on the MIB-federal judge connection. That's before my time at Outsports (though I'm curious, since it seems to be a recurring theme.) wink

I was careful not to say it did. And this is the second time I've been accused of it. The first time it was from someone supporting right-wing causes if I remember correctly. Which indicates my point perfectly. Both sides and the middle can fall back on legalities when they want to proscribe the "inalienable rights" of the individual or a minority. Just laws can protect minority rights.

United States Constitution: Amendment XIV - Citizenship rights. Ratified 7/9/1868.

1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

(Other articles not listed.)

Amendment XV - Race no bar to vote. Ratified 2/3/1870.

1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

(Other article not listed.)

[ September 07, 2005, 07:04 AM: Message edited by: fantomas ]

Considering the Constitution specifically permits capital punishment, it cannot be cruel and unusual punishment per se. A judge who believes it is should not be permitted to sit on the bench, for he would be allowing his skewed, personal opinion to affect his decisions.

This doesn't make any sense to me. You're saying that a judge can't even think that a law is wrong, even though they have a responsibility to uphold it? There's a distinction between being able to uphold the law, despite your moral/ethical misgivings, and refusing to do your job as a judge. Besides, I don't know any judges personally, but I doubt they got to their positions by passively sitting back and not thinking critically about the law they have to apply.

Furthermore, not to harp on legal esoteria, but Ring v. Arizona has severely limited the discretion judges have in applying the death penalty (by assigning the finding of aggravating factors to juries), so I don't think your argument there holds much water.

That wasn't my point. I had stated that the Constitution itself permits the death penalty; therefore to contend that capital punishment per se is unconstitutional would be incorrect for a judge to do, for he would be replacing the clear tenets of the Constitution with his own personal whims, something so often done by left-wing judges.

Judges ought to employ a judicial philosophy and not a social philosophy when ruling on cases dealing with constitutional issues.

That was your point? Oh, I thought the post (and the topic) was about conditions under which a judge should or should not sit.

But to defend so called left wing judges for a moment, could you give me an example of the replacing of clear tenets of the Constitution with personal whims that is "so often" done? I suppose you'll probably tell me abortion, but Roe wasn't based on a social philosophy, but rather a judical philosophy about substantive due process. And before you self-righteously indict all the lefty judges, conservative judges were making analagous due process arguments with Lochner v. New York. It's all a normative valuation that judges are free to make--calling it a capricious personal whim smells like lazy demagoguery on your part.

No, the Constitution prescribes how the State may take the life of its citizens. There's no guarantee in the Constitution that the State has the absolute right to inflict capital punishment, merely that it cannot do so without following the procedures of the Constitution.

If a state criminal judge, for instance, is convinced that the method in which his state sentences prisoners to death is in violation of the Fifth Amendment, is that judge then to merely recuse him or herself from those cases? Or are you still calling for a resignation?

In the case of the death penalty the Constitution has explicit rules. It cannot be argued that the Constitution specifically prohibits abortion, so judges who refuse to hear cases that might result in abortion cannot argue that they are upholding the Constitution, merely that they are not, in their opinion (which is in conflict with the opinion of the Supreme Court), contradicting it. The death penalty, on the other hand has some very specific hoops through which the government is impelled to jump. "Due process of the law" is a concept open to interpretation. Certainly reasonable people will disagree as to what that means, particularly when it comes to taking the life of people with the full authority of the state.

Of course Roe was based on social philosophy, as was its companion case Doe v. Bolton. Just look at the ridiculous trimester framework the Court created. Never mind why a federal court is designing something that is medically-based. Just where the hell in the Constitution is this basis for trimesters?

And what about Justice Brennan's advice given to Blackmun, when Brennan explained that this pending decision of Roe would have no foundation on which to stand unless they ruled that a fetus wasn't a "person." Quite a horrifying thought that was probably not unlike what was discussed in the halls of SCOTUS while Dred Scott was being drafted.

Another look at a decision involving social philosophy clearly is this past March's decision of Roper v. Simmons. That decision contained ridiculous social arguments by Justice Kennedy et. al. that had nothing to do with how it should have been decided. When Justices start discussing things like "standards of decency" or "society's standards," it's obvious they've delved into the realm of social philosophy.

I have made my position on the Death Penalty clear several times here, but I still think Roper was poorly decided, mainly because it was decided by judges who used their social philosophy rather than their judicial philosophy.

Speaking of activist judges...with lots of free time on their hands.

You're filled with contradictions MIB. You don't like when justices rule based on "standards of decency," in Roper but then you get oh so heated when justices are out of step with those societal standards (in the form of your hated judicial activism).

I guess those standards are ok for you only when they're wielded by conservative judges. When a liberal judge bases opinions on them, this use magically transforms from a valid judicial philosophy into a dreaded social philosophy.

Scales of justice? More like a magic wand.

If you don't like this "social philosophy" as you call it, then you should fess up and admit to not liking Lawrence, Romer, Goodrich and a myriad of other gay rights wins in the legal arena. You haven't been able to do that thus far, even when asked point blank. It makes me wonder how committed you are to this point of view, especially when it could bite you in the ass (or at least let the police in your bedroom). :confused:

Edited to add: Raze, summer is a little slower for federal courts and the legal profession generally.

[ September 08, 2005, 01:40 PM: Message edited by: Neptune ]

Fess up? I don't recall you asking "point blank," but since you asked, no, I do not like them. They're socially constructed decisions.

But who cares if they are socially constructed decisions if their effects are good?

Treating the Constitution like we're here to serve it rather than the other way around is silly.

Thanks Dinger, you just hit the nail on the head for me.

MIB, I see now that we're coming at this from two different perspectives, or that at least we're holding two different jurisprudential values. While in law school, I spent a lot of my free time doing gay rights advocacy work with the GLBT student group there, during which I realized that I was willing to forego philosophical "purity" if it meant getting the desired results for the causes I hold dear. I'd be a strict textualist if necessary, or I would argue for living breathing Constitution. For me consistency in jurisprudential philosophy is a great value, but this value is superseded by my sense of social justice. I rationalized this by my intense belief that gay rights opponents would do the exact same thing--forgo such philisophical purity--to get rulings in their favor, so I'd have to fight fire with fire.

I was a bit shocked when you admitted to not liking Brown v. Board, Romer, Lawrence, Goodrich, etc... But MIB, it makes sense to hold these sentiments if you value your judicial philosophy over the real tangible lives of the people who are negatively affected by the laws at issue in those cases (whether segregation, marriage exclusion, or anti-sodomy laws). That's all fine and good for the insulated spaces of legal academia, but I can't in good conscience take that point of view.

Without conceding that the above cases are socially constructed (since I still firmly believe that they are based on a legitimate judical philosophy, albeit one that you don't subscribe to), frankly, I don't care if such decisions are socially constructed or not. Clearly, MIB, you won't be happy with legal solutions to civil/gay rights problems unless they come neatly packaged in the form of constitutional amendments that we all know won't realistically happen in this country. Unlike you, I care more about the outcomes than the means, and I have no qualms with creatively interpreting due process or any other element of the constitution to do so. To quote one of your previous posts \"Remember, too, that the ends do not justify the means.\" Well as a black gay man, I probably wouldn't have a racially or sexually liberated environment within which I could enjoy my life if jurists took your point of view.

Edited to add: MIB, to refresh your memory, I asked you about the mentioned cases in this thread.

[ September 08, 2005, 11:09 PM: Message edited by: Neptune ]

I do, dammit!

Enough of this "the ends justify the means" bullshit. I'm so sick of people disregarding the Constitution as long as the end result sits well with their personal social whims.

Why must amendments always be the answer? If a state has some restrictive law, then get the law repealed. If no law permitting something exists, then get one passed that does.

Too often we as a society look to our courts to be the legislature we wish we had. After all, it's much easier to get one, two, three, or five liberal judges to legislate from the bench than it is to get several dozen or even a hundred legislators to legislate.

This is why left-wingers have for years been so protective of the courts. Why do you think they're foaming at their mouths over Roberts and Bush's pending other nominee? It's because they realize that many issues that belong in the legislative arenas of our country may finally be put there--where they belong--removed from the judicial arena where they've been improperly, if not illegally, been for decades.

They realize that Americans may not agree with their political whims or ideologies, so instead of leaving it up to the political discussions and processes that are in place, the Left removes it and wants leftists judges--their allies--to enact what the legislatures may or may not act.

I'm sorry, but I hold the Constitution too dear to let it be emasculated by calling it a "living" document or by letting it be misinterpreted by judges who hold some personal social belief toward which the Constitution ought to bend.

The Constitution per se was never meant to "change with the times" without it being amended or without laws being passed to address what it doesn't address. This is why I have never been an advocate of it being the so-called "living, breathing" document. To believe so automatically neuters it. It loses its meaning and potency, for during one time it would mean one thing then during another it would mean something different, without any changes to it whatsoever. This is preposterous. How can something that is clearly written for all to see mean so many different things based on the desires of society at a given point in time? Answer: it can't, unless society wishes to amend it.

[ September 09, 2005, 01:18 PM: Message edited by: MIB ]

So the First amendment applies to speech (oral) only? Or does it apply to printed words? Does it apply to words broadcast over airwaves (something unheard of in Colonial times)? What about words posted on a virtual computer network?

Of course the Constitution must be interpreted to reflect the changes in society and in technology. The Founding Fathers may not have evisioned a "right to sodomy," but the First Amendment right to freedom of religion clearly protects all moral value systems - INCLUDING those that believe same sex relations are not necessary immoral. To allow a majority to trample the rights of a minority to live their lives in peaceful coexistence is directly counter to the very idea of the Constitution.

Yawn. Tell it to someone who cares. I'm sick of people hiding behind strict textualism instead of actively and creatively interrogating the constitutional provisions that support social injustice. I hope that strategy works out for you.

And before you start waxing poetic again on how the constitution is under attack, the sad reality is that most Americans couldn't give you very many details about the constitution. Most Americans sadly just don't care, even though the US constitution is one of the greatest documents drafted, and even though it is a model for newly emerging states. Maybe we all need a national civics course. But the reality is that people only start to think about the concept of strict interpretation when socially divisive issues like gay rights, the death penalty, or abortion come up.

The harsh truth is that the choice to strictly construe the constitution is a choice that, for the vast VAST majority of people, is politically motivated and not based on some greater desire to protect the constitution (again I bring up Lochner v. New York to show you how conservatives will ignore strict interpretation in the right set of circumstances).

I enjoy needling gmginsfo, but at least I know that his conservative heart means well on issues of gay rights. But I just don't feel comfortable with the idea that gay folks should be f*cked by your cherished politically-fueled judicial philosophy, or that their lives should generally be devalued into the form of a "personal social whim" by the likes of you MIB. I have to respectfully say that I have different priorites, and I'm thankful for that.

Edited to add:

MIB, you say that gay rights supporters should take the focus off the courts and on legislatures. That seems pointless to me and really naive. We're living in a time when most states are unreceptive to any pro-gay legislation. It makes more sense to fight battles you can win, and those take place in the court right now.

In addition, the constitution has power because the citizens believe it does, not because it has stood the test of time. Age is a descriptor, not a per se legitimizer.

[ September 09, 2005, 02:03 PM: Message edited by: Neptune ]

Is that speech? I think so. Obviously, then, the Constitution would include it, with no need to bend it to the times. BTW, \"words on a computer\" are covered in various laws. It is irrelevant whether the Constitution contains any references to PC's, for laws dealing with that have been addressed by elected officials.

Hogwash. By doing so you make the very document useless, for its lost any credibility it had when it can change simply based on what a contemporary society wants.

[ September 09, 2005, 02:01 PM: Message edited by: MIB ]

I cannot help it if you do not care. I sure do. I always have and always will.

I appreciate and share your opinions of Americans' ignorance when it comes to the Constitution. Neither I nor you is going to change that anytime soon, I'm afraid.

I shall continue to stand by my positions anyway, comfortable that they are the correct ones. I prefer to defend that great document against those who wish to socialize it so that it fits their utopian society one day and another's the next.

A strict textualist must repudiate Marbury v. Madison. No where in the Constitution are the courts given the authority to declare an act of Congress unconstitutional.

The question isn't whether the appropriate attitude toward the Constitution is interpetationalist or literalist, but where the line is drawn on interpretation. I certainly agree that there is an argument to be made that Roe v Wade crossed that line. It's not an argument I agree with, but one that I can understand. Saying that Roe v Wade was interpretive and therefore illegitimate ignores 200 years of Constitutional precedent and the foundational court cases that make the judiciary what it is today.

George W. Bush is potentially redrawing that line. We won't know the extent of that shift until both new Justices are seated and have participated in both arguments before the Court and decisions of the Court.

MIB's strict constructionalist point of view is, in fact, the extremist position here. Every legal scholar, every judge, every politician anywhere near the moderate position recognizes that the courts are interpretive bodies and argue over where the line gets drawn. It just doesn't make sense to continue having an argument with someone who lost it 200 years ago. It's like giving your three year old the satisfaction of getting into a "yes/no" contest. You don't have the time to waste with a three year old with an axe to grind. MIB evidently does.

Originally posted by dinger:

But who cares if they are socially constructed decisions if their effects are good?

and MIB said:

I do, dammit!

Enough of this "the ends justify the means" bullshit. I'm so sick of people disregarding the Constitution as long as the end result sits well with their personal social whims.

Try caring for people and their lives more than an old piece of paper.

And if enforced they would work.Not enforced they are empty rhetoric.

The most "affirmative action" we could take would be to prosecute those who violated such laws - a more difficult act than giving handouts.

The Constitution is more important than somebody's life. People have died for it. Never forget that.

Indeed, but a stroll through the Federalist Papers reveals that some of the Founders believed it was the judiciary that had the responsibility of interpreting the laws. Perhaps Chief Justice Marshall had read this before announcing his decision. wink

[ September 10, 2005, 11:29 AM: Message edited by: MIB ]

But the Federalist Papers are not the Constitution. Bringing them up proves the point. We look outside the Constitution for guidance and insight into what the Constitution means. That's an act of interpretation. The argument is how far one is willing to go to interpret the Constitution, not whether the Constitution is interpreted. If the only authority is the Constitution itself, Marbury v. Madison is a violation of the Constitution and 200 years of judicial history is a sham. If Chief Justice Marshall read anything but the Constitution before announcing the court's decision, he was violating your stated Constitutional philosophy.

Perhaps. Did you notice the little wink I purposely included at the end of my post?

So your position is that Marbury v Madison was a poorly decided case, and that 200 of American judicial tradition and decisions are based on an extra-constitutional mistake?

[ September 11, 2005, 12:54 AM: Message edited by: jqueer ]

MIB,

I regard the Constitution with the utmost reverence, but I also believe it is about forming a Government of, by, and for THE PEOPLE. Yeah, it's about the people. They come first, not the document, that's all. Using the Constitution as the reason to keep people's lives f**ked up is just not what I think was intended by the framers.

But dinger, the Founders realized the Constitution could not possibly address everything that ever would occur. That's why the document so wonderfully deals with this dilemma in a few ways: the amendment process to make significant alterations to it (even if some of them ARE stupid, like Prohibition, quickly repealed); the 9th and 10th amendments of the Bill of Rights; even Congress's "elastic clause" as it's sometimes called covers many, many areas not explicitly stated.

I think you might have misinterpreted my statement above that a piece of paper was worth more than a human life. I apologize if that was the way it sounded, for that wasn't my intent.

Thanks, MIB. But what concerns me is when the majority is wrong. And they have been before. It takes a significant majority to make the Constitutional changes you discuss. And when the minority has no other avenue for redress, it must find a court with a judge who can see the right, even though the majority cannot. And if that judge has to be creative in order to do what's right, God bless him/her. The outcome is the most important thing, not how we get there legally.

Sorry, but this cannot be acceptable, for to get to a result unconsitutionally renders the entire decision invalid.

Using your logic, as an example, if police gather evidence illegally but the defendant is clearly guilty, should the courts allow a guilty verdict to stand? Of course not.

The ends cannot justify the means, and trying to get a judge to "see" something that does not exist renders the Constitution meaningless.

Well, I'm not a lawyer (nor do I support the Lawyers Employment Act) and trying to argue this would be frustrating for me and boring for you. All I can say is there's something very wrong about valuing legal processes more than people and their lives.

And I'll say this - if a creative judge found a way to convict the crook in the example you offered, then good. Of course, they need to be careful - they've been wrong before about people's guilt when politics played a role in their decisions.