In spite of the fact that the latest census reveals that 41% of the residents of New Jersey are minorities, the New Jersey Supreme Court remains an embarrassingly monolithic 100% white. In an effort to show sensitivity to issues of diversity, Governor Chris Christie recently nominated two new court members – Phillip H. Kwon, a Korean immigrant, and Bruce Harris, an openly gay black man. The nomination of Harris was initially greeted with excitement in civil rights circles, especially since Harris is both openly gay and partnered.
Unfortunately, Harris’ appointment is conditional upon his recusing himself from any same-sex marriage issues. Governor Chris Christie is on record as opposing same-sex marriage. Christie insists that Harris voluntarily offered to recuse himself, supposedly because three years ago he wrote to several state senators asking for their support of a same-sex marriage bill.
Whether this is Harris’ unsolicited offer or Christie’s requirement is immaterial: it is a dangerous (and illogical) precedent that enables the Executive and Legislative branches to stick its collective noses into the outcomes of judicial cases where it doesn’t belong.
Every Court nominee arrives at the bench with a history of advocacy, either through the legislative process, or through written judicial opinions. This is nothing new. What is new is the pre-emptive strike against specific judges from hearing certain issues.
When President Obama nominated the Hon. Sonia Sotomayor to the United States Supreme Court, there was a brief storm of opinion when she commented, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” Sotomayor, who was ultimately confirmed to the Court, was not suggesting that Latina women were somehow smarter than white men; rather, she was expressing a well-settled understanding that diversity is important in the legal system. Those who have struggled to answer a police officer’s question because they do not speak the language; a woman who has feared for her life in spite of a restraining order issued against her abusive boyfriend; an immigrant afraid to report a crime because of their residency status; and a gay man who is denied justice after being beat on the street by someone who then claims the ‘gay panic defense' - understand life and the American legal processes in ways that are different than those who do not have to deal with such issues. That is why diversity is important, especially in the Judiciary.
To be certain, Judges should recuse themselves from some issues. Title 28 of the United States Judicial Code set standards for judicial recusal, naming four specific occasions. A federal Judge must recuse himself:
1) "where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding"
(This would not apply to Harris, since there is no particular case with identified parties at hand)
2) when the judge has previously served as a lawyer or witness concerning the same case or has expressed an opinion concerning its outcome;
(This would also not apply to Harris, since there is no specific case at hand)
3) when the judge or a member of his or her immediate family has a financial interest in the outcome of the proceeding. (This would not apply to Harris, since there is no particular case with any identified financial interests at hand)
4) in any proceeding in which his impartiality might reasonably be questioned.
This is the only criteria where, on its surface, Harris might be accused. A logical analysis, however, as well as history, shows this to be utter nonsense.
Having an opinion on a legislative issue (what “should be”) does not inply that impartiality on a judicial issue (how the law “is” to be applied) is compromised.
First of all, being gay does not disqualify Harris from ruling on marriage issues. If it did, his being a black man would also disqualify him from racial discrimination cases. Furthermore, if being gay disqualifies him from cases involving same-sex marriage, then being heterosexual or married would also disqualify most other judges, since the opponents of gay marriage claim that same-sex marriage harms traditional marriage. This would disqualify both gays and judges in traditional marriages, thereby creating the unacceptable situation of only allowing single judges to rule in such cases.
Second, Harris’ advocacy on behalf of gay marriage can not possibly be deemed to render him impartial in a legal case. As stated above, advocacy for legislative issues does not imply impartiality in Judicial cases. As proof of this, I offer none other than Reagan-appointed Supreme Court Justice Sandra Day O’Connor.
As a State Senator in Arizona, O’Connor not only advocated, but acually cast a procedural vote in favor of a bill to repeal the state's criminal-abortion statute. Later, she voted against a measure to prohibit abortions in Arizona state hospitals. In spite of this, no one ever suggested that O’Connor needed to recuse herself from abortion cases before the Court, and she was confirmed by a vote of 99-0.
Later, in Webster v. Reproductive Health Services, 492 U.S. 490 (1989), which upheld some restrictions on second trimester abortions, O’Connor not only participated, but wrote a concurring opinion in which she explicitly opposed overturning the landmark Roe v. Wade abortion decision. In 1990, she was the critical swing vote in Hodgson v. Minnesota, 497 U.S. 417 (1990), which looked at whether a state may require notification of both parents before a minor can obtain an abortion. Again, O’Connor not only participated, but provided the swing vote with the liberals in ruling 5-4 that a state could not do this, and then also provided the critical swing vote with the court conservatives in ruling 5-4 that such a law would be valid if there was a judicial by-pass in place of notifying both parents.
Never in the course or aftermath of these decisions was it ever suggested that Sandra Day O’Connor should have recused herself due to having a position on abortion issues as a state legislator.
The notion, then, that Harris should recuse himself from same-sex marriage cases simply because he favored same-sex marriage legislation in New Jersey is not only unprecedented, it is dangerous: it eviscerates the entire purpose of appointing a representative, diverse court, and calls into question a judge’s integrity before he or she has even had the chance to hear a case.
The caveat that Harris recuse himself is an unacceptable condition of his approval. If this is Christie’s doing, shame on Christie; if it is Harris’ offer, then shame on him.
Either way, this nomination deserves to be defeated as a rejection of the politics of control over judicial rulings.
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