Box Turtle Bulletin

Judges are supposed to recuse themselves when they approach an issue with specific personal conflicts of interest, where they have preformed opinion sufficient that they cannot judge this issue on the merits of the case, or where they have a publicly stated position.

Here we see an example of excellent ethical judgment at work. As much as it saddens me, I’m impressed with Harris’ interest in playing by the rules. If only certain other judges would do the same.

homer

Bull. Justice Scalia has made many comments and speeches disparaging gay people. He won’t recuse himself.

We fully expect judges to interpret the law. If not, why bother being on the Supreme Court, other than to collect a big paycheck?

I still think it’s insulting to a judge. Just because he asked certain Senators or Representatives to support marriage, that doesn’t mean he necessarily thinks there is a constitutional guarantee to it. Judges are supposed to be impartial no matter what. To imply that because he’s in favor of a law that he would go against his duty as a Supreme Court judge is more than a little insulting, in my opinion. Being gay has nothing to do with this.

@homer Justice Scalia has proven himself several times to be a partisan scumbag. Wasn’t it just last year that he told a group of people that the constitution doesn’t grant equal rights to women? The man will do anything to fit his own ideology. Harris, however, has no record as a judge, and no record (that I’m aware of) as interpreting the constitution and what rights are guaranteed. That’s why I think it’s wrong for him to recuse himself.

Updated since you updated the post. If he is talking about a constitutional matter, then yes he should recuse himself. He made the right decision.

Jim Burroway

Justices have advocated for all manner of positions in their prior lives, and they haven’t been required to recuse themselves. Justice Marshall didn’t recuse himself over every case involving racial discrimination or segregation. He only recused himself in the cases in which he had prior connections. Given his earlier work, he ended up recusing himself in a great number of cases. But the recusal was because he had connections to those cases, and not because he held longstanding positions against racial segregation and discrimination, or would benefit from any of the rulings he participated in on the basis of his race.

I’m sorry. I find this whole thing to be a double standard being imposed on Harris which has not been imposed on any other judge that I can think of.

Amicus

The question is whether Christie selected Harris with knowledge that he’d be willing to recuse himself.

If so, that’s hardly the generous “gay appointment” that he wants to get credit for (Or that some in NJ are dishes out).

What is the influence that you think his presence on the top court will have?

Wouldn’t it be better if he just said he wouldn’t get married in NJ, rather than recuse himself? Wouldn’t that take away his conflict, if any, too?

To sideline himself sends the message that he believes that reasonable people can disagree on the issue, doesn’t it?

That’s unwanted. I’d have to considered hard whether to send Mr. Christie back his nominee…

Timothy Kincaid

It has been my observation in watching a good many judicial nominees from both parties, that those seeking appointment declare intention to recuse themselves on matters which will be heard by the court and about which they have declared predetermined opinion. This does not hold for all matters that they will hear but ALWAYS has applied to matters that are immediately before the court. In this manner, they avoid having their approval be based on a vote before the court. We need look no further back than Kagan for an example.

Perhaps others have seen justices who opine on matters before the court and then receive confirmation. I have not.

This fact may not sit well with those who are searching for cause for discontent. After all, Christie appointing a gay black man for the position does not square with the pigeon hole to which some wished to relegate the governor. And finding cause for anger makes it easier to invalidate his choice and make all the presumptions and prejudices align.

So scenarios are imagined – scenarios having zero basis and (to be honest) bringing discredit to those imaging them. It must be a trade off. It must be that Harris is some week meek house mouse.

Because if he was appointed due to his abilities and if he is being ethical in self recusal, then we just might have to be a pinch less partisan and god forbid that we do that.

Jim Hlavac

Well, if Harris must recuse himself because he advocated For gay marriage, every hetero justice who ever said a word against, or for, or agnostic even, should also recuse themselves. And surely every politician who voted for or against in previous debates and votes should refrain from voting in the future. And well, the public themselves all have expressed prior opinions — are they then not bringing “advocacy” or “prior statements” to the table? And why should a gay judge recuse himself from gay issues? Suppose a gay murder came up to the court? Would Harris recuse himself then? And there’s going to be more gay cases over time — is Harris never qualified to rule on such a case? And why are heteros allowed to rule on hetero issues? Or woman judges on female matters? Or Latino judges on say, language legislation, such as if voting materials should be in Spanish or Haitian French? No, there’s no reason for Harris to recuse himself, for then it would appear that no one is qualified to vote on the issue which the GOvernor himself said “affects everyone.

TampaZeke

I will agree with you if he also recuses himself from all other issues that he, as a POLITICIAN, has publicly advocated for or against; even if only those that are before the court at this time. Something tells me he won’t have nearly as much “integrity” on other issues as he does on this particular one. And something tells me that Christie wouldn’t expect, or even want, him to. Nor would he ask a Catholic appointee, who had publicly lobbied against marriage equality to do the same.

blue-heron

Chris Christie knew before hand that Bruce Harris would recuse himself and the deal was struck. This timely announcement coming just days after the nomination is NO coincidence. Christie sought to ride the fence with political motivations, period.

What Chris Christie may or may not have forethought is how this agreement to recuse may (or may not) affect Scalia with his long blatant record of overt condemnation of gays in large public venues such as college auditoriums, which clearly meets the standard for recusal.

I am smiling. Citizens, Lawyers and the likes will have plenty of time now to analyze and to lay the groundwork toward applying a Like Standard of Judicial Propriety upon Supreme Court Justices, before the arrival of Prop 8, IF Justices are to retain credibility whatsoever.

Mike

This is ridiculous… esp. for a Supreme Court Justice for goodness sake. He is suppose to be able to put his personal beliefs aside and consider the issues and then rule. This guy is saying he can’t do that. If that is the case, he isn’t suitable for the office. NEXT!

Timothy Kincaid

I’m sad. I expect ranting from the comments of other sites. But I truly thought that the BTB readers would look at the direction in Title 28 of the US Code and realize the following:

1. Whether civil unions are adequate is a matter that has already been introduced and will be heard by the court. This is not hypothetical.

2. Harris has already expressed an opinion about this constitutional question. It doesn’t matter what that opinion is. He wrote his views and tried to persuade action based on them. Read the friggen email.

3. Therefore it is appropriate that as a provision of his appointment he recuse on this specific determination. That is how it’s done.

If we are not willing to accept the rule of law when it doesn’t fit our momentary mood, if we plug our ears to the most basic of judicial procedures and play martyr saying that gay judges don’t have to follow the rules that every other justice must follow, then we become just like the anti-gays.

This recusal isn’t because he’s gay. It isn’t on every gay issue. It is only on the issue before the court about which Harris has opined.

I know that you are capable of grasping this principle. I very much respect the intellect and analytical skills of many of you. Make me proud.

Andrew M.

Even if he is biased, I completely disagree that recusing himself is the correct action.

Why are we expected to gain our equality by working within the system from a position of inequality? Why should we handicap our cause by playing by the rules of the system that has allowed this inequity to happen in the first place?

Our cause is as righteous as they come. The ending of the systematic and widespread discrimination of LGBT is paramount. I’d be happy to debate the ethics of when a judge should recuse themselves, but only after I stand as an equal citizen under the law as every other American.

This fight has been called a social war before, and I think its an apt description. Our opponents get this. They are fighting a total engagement. Everything is on the table for them, and they represent some of the oldest and most powerful human institutions that exist. I would rather not risk our future, and the futures of the next generation of LGBT on lofty misplaced ideals. The moral wrong of a class of people being denied equal access to the government far outweighs the philosophical pondering of when a judge should recuse themselves.

And while this argument might seem close to “by any means necessary” or “the ends justify the means” not all ends and means are the same. I am not advocating personal harm or damage to anyone. I am however saying that the ethical dilemma of how to act as an impartial judge in government system counts next to nothing next to the real world consequences of inequality. People are dying because of this inequality. Lives are being destroyed because of this inequality. The stakes are simply too high, and the consequences too dire to do anything less than win this war as quickly and efficiently as possible. The longer this fight goes on the more kids will get bullied, the more people will suffer in the closet, and the more victims will get bashed. Playing by their rules is a luxury we can’t afford.

We did not choose this social war, and it is not fair that we have to fight it. But thats how wars work. I respect all opinions that differ from mine and perhaps we should not sacrifice any of our ideals in our quest for our freedoms. I however do not share that view.

Priya Lynn

Timothy said “I know that you are capable of grasping this principle. I very much respect the intellect and analytical skills of many of you. Make me proud.”.

So, people should desire your approval and agree with you in order to gain it?

Andrew M.

@Timothy Kincaid
“If we are not willing to accept the rule of law when it doesnâ€™t fit our momentary mood, if we plug our ears to the most basic of judicial procedures and play martyr saying that gay judges donâ€™t have to follow the rules that every other justice must follow, then we become just like the anti-gays.”

When I read the California Supreme Court’s opinion that says special rights for me can be “carved” out by popular vote, I knew that the social contract is broken. At least for me.

I read boxturtlebulletin daily, and I’m sorry if this opinion does not make you proud, but what separates us from the anti-gays is not our methods. I’m not in this fight to be or feel morally superior to anyone. I’m in this fight to create a future where the next generation of gays has no understanding of what happened to the previous ones. I’m fighting for a future where inequality seems so ridiculous and silly that they can’t believe it was ever an issue. I’d be willing to sacrifice much, including my ideals on correct judge ethics, to create that future.

LetSodomRing

To people who have little idea how the justice system works, this soundbite of an idea may sound good. In reality, this is nothing less than a very dangerous attack on judges. This is unprecedented: judges only recuse themselves if they’re related to the parties involved in a case, or if they’ve been previously directly involved in the case at hand.

Think about it, people. If a judge previously issued a ruling that included a statement affirming a right, does that mean that judge will now have to recuse her/himself from all future cases involving that right? If any public advocacy for an issue disqualifies a judge, a judge who supported any kind of legal principle would be disqualified from cases involving it, disqualifying most judges from most cases!

This is nothing less than a direct and toxic attack on “activist judges” by the right. This obsequious little Republican turd Harris is playing along. He will be trotted out as a good example by right wingers in any case involving any sense of fairness. And any judge who doesn’t participate in this ridiculous sham will be condemned.

I don’t really understand – he wrote one email and he feels the need to recuse himself? Its not like he is the head of Garden State Equality or anything. I could understand if he represented clients in a gay rights case but just because he sent an email once doesn’t seem like a strong reason. According to an interview with Governor Christie, Harris stated his decision to recuse himself during his initial interview. I wonder if that played a factor into his appointment? Christie gets positive feedback for appointing a gay justice but doesn’t have to worry about the justice siding with Democrats over gay marraige because the justice is already willing to recuse himself. Win-win for Christie.

Timothy Kincaid

Andrew,

We disagree.

But I respect that you are aware of the rule and have made a conscious decision to defy the rule. That is quite different than just ranting. So while I think you are wrong, I think your position is worthy of being read and being based in logic and principle I can be proud of it.

Timothy Kincaid

“This obsequious little Republican turd Harris…”

Okay, ENOUGH

This is nothing but an unjustified attack on a man’s character based on nothing but your own hatred. How vile.

Timothy Kincaid

KP,

He has indicated that he already has an opinion on the case that is before the court. Without hearing testimony, he argued a position.

That is perfectly fine for an attorney, a politician, or a mayor. It is not okay for a justice that will hear the case.

Whether this was a win or a loss for Christie is irrelevant. Recusal was the correct decision.

Timothy Kincaid

And for those who think this “unprecedented”, Kagan is predicted to recuse in about 10-11 of the 23 or so cases the US Supreme Court will hear this year. Recusal is not some tool of extremists, it is the method by which very serious people who care greatly about the constitution of the states or nation take themselves out of the process so that the people know that our judicial decisions are made according to the principles in the constitutions and not to advance the cause of some “activist judges”. This is an essential tool.

It is the recusal process that allows me to laugh at those who rant about “activist judges”.

That some judges see themselves above the law (scalia, anyone?) does not mean that those who care greatly should throw out the process.

BobN

As a GOP politicians, albeit one with only one term as a minor mayor under his belt, he has no doubt advocated quite a few GOP positions on quite a few issues. Health care? Taxes? Immigration?

No doubt he’ll recuse himself on all cases regarding those issues, as well.

yeah, right.

BobN

Kagan is not recusing herself because she merely advocated some public policy. She will recuse herself from cases in which she had a direct hand.

COMPLETELY different.

Tully Fitzsimmons

I must disagree entirely. You confuse advocacy for a legislative position withe rendering a Judicial opinion. Analysis at http://tullyspage.blogspot.com/2012/01/court-nomination-of-bruce-harris-should.html

Timothy Kincaid

Tully,

The wikipedia explanation includes:

In the United States, the term “recusal” is used most often with respect to court proceedings. Two sections of Title 28 of the United States Code (the Judicial Code) provide standards for judicial disqualification or recusal. Section 455, captioned “Disqualification of justice, judge, or magistrate judge,” provides that a federal judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” The same section also provides that a judge is disqualified “where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding”; when the judge has previously served as a lawyer or witness concerning the same case or has expressed an opinion concerning its outcome; or when the judge or a member of his or her immediate family has a financial interest in the outcome of the proceeding.

You omitted the consideration about previous determination.

Granted Wikipedia is not definitive and is merely collected wisdom on an issue. Nevertheless, predetermination is a consideration I have heard brought up in confirmation hearings so I wonder at your deliberate exclusion.

Could it possibly be that you started with your conclusion and worked backwards to find what supported your own biases?

And your illustration of Day O’Connor reveals a misunderstanding of the issue. Day O’Connor did not recuse herself on all matters involving abortion. However, had there been a case before the court at the time of her nomination, and had she expressed an opinion about the terms of that case, I’m certain she would have recused herself. Day O’Connor was principled and ethical. Just as Harris seems to be.

—-

Okay, I’ve interjected myself into the comments enough on this thread. So I’ll let y’all have the last word/s.

Amicus

I think (but not sure), I’m right in saying that Title 28 only applies to Federal courts. (Rest is handled by ABA).

I don’t see anything in his letter that suggests his ‘impartiality could be reasonably questioned’.

To the contrary, he shows a judicious treatment of the facts in his letter and an open mind to hearing why people oppose his view, doesn’t he?

Tully Fitzsimmons

Timothy, re-read what you’ve written: your error is very clear. I will re-post the very phrase YOU highlighted:a judge should recuse himself ~

“when the judge has previously served as a lawyer or witness concerning the same case or has expressed an opinion concerning its outcome”

This refers to a CASE….meaning a SPECIFIC issue in litigation. Harris did NOT offer to recuse himself because he expressed an opinion on a CASE; he offered to recuse himself (or was told to) because he expressed an opinion about PENDING LEGISLATION.

LEGISLATION is NOT A LEGAL CASE. He is wrong, and, I’m afraid, you are too.

Timothy Kincaid

Okay, I will hop back in to just answer one question.

Tully, yes, a case. As in the specific challenge currently in the NJ judicial system by which our advocates are arguing that civil unions are inadequate (which, I assume, is called Garden State Equality v. Dow). See the email:

“The New Jersey Supreme court has determined that our relationship is entitled to the equal protection guarantees of the State Constitution. The New jersey Civil Union Review Commission determined that civil unions do not provide the equality the State Constitution mandates.”

I don’t think he need recuse himself on ALL matters of marriage equality. But on this case, the one in which we will argue that civil unions do not meet the court’s requirement for equality, he simply must recuse. He has already concluded in the matter.

StraightGrandmother

Completely off topic but since we are talking about Judges. Do you think they are saving the Prop 8 Decision for Valentines Day? The last hearing were December 12th, 2011.

In order to endure the wait I always have to give myself targets. My first target was before Christmas. My next Target was Jan 12 (a month after the last hearing). My next target was by the end of January. So my newest target is by Valentines Day. Valentines Day, that would be sweet wouldn’t it?

The Prop 8 the trial was in January 2010 (The case was first entered in May of 2009) and then we had to wait all the way until August 4th 2010 for Judge Walkers decision, 7 months. I HOPE we don’t have to wait that long for the decision on the Appeal. The waiting is killing me.

Tully Fitzsimmons

No, Timothy. Harris has NOT commented about that particular case. Period.

His ‘recusal’ was based on an email letter he wrote to some State Senators 3 years ago, dealing with legislation. THAT is the basis for the recusal, and as such, it is misplaced at best, dangerous at worst. If you can find a SINGLE comment he has published concerning a current CASE, you wold be correct. So I challenge you to do so, because there IS no such incident.

This is called re-writing history, without any basis in fact, in order to cover one’s erroneous ass.

Timothy Kincaid

Tell yourself whatever you want, Tully.

Harris actually references the plaintiffs and you don’t see any relationship to the case.

Amicus

Tim, I read Harris’s e-mail reference to be to the prior NJ Supreme Court decision that gave the legislature a choice to do CU or marriage, as best I recall, writing on the fly. That is, not to the current case, filed after we lost the equality vote in the lame duck before Christie.

I think (definitely not sure) that case is still in superior court, not on the Supreme docket, yet. (Just as a matter of the facts, not that it is pivotal to the question to be decided.)

We all remember justices refusing to offer an opinion on questions that might come up before the court (something that I believe is a fairly modern maxim, no?).

But, there are many justices that have written things in law journals and elsewhere that comment on the issues that will come up, whether or not a case is pending. The treatment of these is not recusal, but simply to take such musings into account as part of the confirmation process, no?

Amicus

“reference to be to” s/g “reference to”

If I’m right, then his comment was on a ruling as it applied to pending legislation, not directly on the merits of a pending case.

That would be like quoting Hamdan v Rumsfeld, while writing a letter to your Senator to beef up the laws on terrorism in one way or the other.

Priya Lynn

I haven’t followed this discussion closely so I may be mistaken on something key but if I understand correctly Timothy said Harris must recuse himself because he sent an email that said “The New Jersey Supreme court has determined that our relationship is entitled to the equal protection guarantees of the State Constitution. The New jersey Civil Union Review Commission determined that civil unions do not provide the equality the State Constitution mandates.”

That email does not express an opinion on the apropriate outcome for such a case, it merely documents what someone else decided. Unless I’m missing something then by Timothy’s own standard Harris need not recuse himself.

Richard Rush

Amicus noted,

“As a Republican elected official and someone who has worked hard (and successfully) to get Republicans elected in Chatham Borough…”

So it seems we must assume that Harris is biased in favor of Republicans and, more importantly, most generally accepted Republican viewpoints on issues. Will people demand his recusal where those viewpoints are relevant to a case, or are same-sex marriage issues somehow unique?

Timothy Kincaid

Amicus

He didn’t mention them in their role as plantiff, but as general issue advocates. That would be like saying anyone who mentioned the ACLU webpage on this or that issue is disqualified from any pending case in which the ACLU is a plantiff. Too broad, that.

Yes that would be too broad.

But it has about as much in common with the facts of this matter as do apples and pineapples.

Harris did not ‘mention’ the GSE site on ‘this or that issue’, nor is he ‘disqualified from any pending case on which they are a plaintiff’. We would agree on that.

Rather, he referenced the testimony of individuals listed on the GSE site specifically on the matter of whether civil unions are sufficient. The exact plaintiffs. The exact case.

On these real facts – not hypothetical other facts – is how the issue should be approached. And I ask you, Amicus, on these facts, and assuming that the goal is not to ‘let him rule’ but rather to really determine whether recusal is appropriate, how can you find otherwise?

Wouldn’t you object if a proposed justice had referenced, say, the Ocean Grove campground and used them as a cause for their advocacy, and then were not to recuse on that case? I would.

Richard Rush

It seems to me that Harris’ stating an opinion on a desired legislative outcome does not necessarily mean that he believes that same outcome is within the purview of the courts. Many people feel that certain issues are rightly within the purview of the legislature, but not the courts – and sometimes vice versa.

On a related aspect, I assume that all judges have some preexisting opinions and biases on many issues, but we only expect them to recuse themselves if they have verbalized or written them. Otherwise we expect that their professional duty is to reevaluate or ignore their preexisting opinions and biases when relevant to a case. The only lesson here for a judge is simply to keep his/her mouth shut.

Timothy Kincaid

Amicus,

I think you have stated some of the facts correctly. However this case is before the superior court only as a filing requirement and all agree that it is a question to the supreme court – new coverage ever presents it that way.

And that’s a bit aside the point. After all, if it doesn’t reach the Supreme Court, he need not recuse.

And while the email was witten in the context of proposed legislation, the argument was the argument presented in the case – even so far as referencing the plaintiffs.

I understand the disappointment in hearing that someone who should be an advocate is recusing. and it’s natural to not want to lose a supporting vote.

But were the situation reversed, I would be scathing towards some anti-gay who had campaigned against equality and mocked Garden State Equality’s testimony had they not recused. How can I not apply the same standard to one who noted his agreement with GSE?

Amicus

Tim,

I did mention that the fact that the case is filed in superior court is not pivotal to the main question at hand.

It’s a stretch that his mention of GSE is disqualifying. He didn’t mention them in their role as plantiff, but as general issue advocates. That would be like saying anyone who mentioned the ACLU webpage on this or that issue is disqualified from any pending case in which the ACLU is a plantiff. Too broad, that.

Also, it a bit of a stretch to say he is parroting the arguments of the plantiff. His e-mail presents the broaders of arguments, stuff that would never be considered copyright, just general ideas and concepts that have been hashed and rehashed by many people and groups. If plantiff had made some sort of unique argument, maybe…

If the shoe was on the other foot, then we’d have an opinion from someone writing, presumably, about their biblical beliefs and not inviting anyone ‘to explain their (counter) position’, as did Harris. It would probably be old, because they’ve stopped explaining themselves, as their explanations backfired. (Today, we mostly get votes in silence, even from lawmakers normally chatty about issues.)

I suspect such an opinion would become part of the confirmation hearings, with people asking about how a Justice can be relied upon, if they look to the Bible, rather than the State’s Constitution for guidance…

Amicus

@Richard

FTR, Harris’s background appears to not be just in the judiciary:

“As a Republican elected official and someone who has worked hard (and successfully) to get Republicans elected in Chatham Borough…”

Priya Lynn

The connection Timothy’s making is way too nebulous for me. I think sometimes conservative gays are so eager to appear fair and impartial they overcompensate and concede arguments to the anti-gays that are illogical. Harris is likely overcompensating and erring on the side of the opponents of equality.

Amicus

Tim, the context of the cite to GSE is the NJ CU Commission, who also took testimony, not the suit.

These videos were available before the suit was filed, i.e. before the failed lame duck session, as part of GSE’s general advocacy.

To insist that he was referring to a case is probably wrong. It would be, then, considered incidental that he did, because those same people also showed up in the suit (for obvious reasons – it’s easiest).

To pull that one line out and suggest that he’s bias because of that one reference, is to ignore the rest of the e-mail, I think. In other words, it would be a biased reading of what he said. Similarly, if someone mentioned the Ocean Grove nightmare, it would depend on what else they said. Did they reference one side of the complaint, only? Did they give an summary judgement that a court opinion was wrongly decided?

Finally, look at para 455 of title 8, we can conclude that he has no independent, personal knowledge of the facts of their testimony. He’s not personal friends with any of them, that I know.

So, if he has a ‘personal interest’ it is also his ‘general interest’, i.e his civil rights as a gay man.

Timothy Kincaid