Prop 8: The Battle continues...

[heliochrome85]

http://www.sfgate.com/cgi-bin/article.c ... .DTL&tsp=1

I find it a bit grasping at straws the argument currently put forth by the backers of Proposition 8, that the judge who invalidated the legislation should have recused himself because he was gay. As if he couldnt decide fairly despite his oath, and his record. ridiculous. what happened to loving they neighbor, and treating people equally?

[srellim234]

I agree. They're grasping at straws. The argument could just as easily be turned around and the claim could (should?) be made that heterosexual judges should step down from the case because they couldn't relate personally to the discrimination against gays. Or since the majority of heterosexuals voted for the ban heterosexual judges should be forced to reveal their vote at the the ballot box showing their bias in the case before it ever reached their courtroom.

We have to assume that our judges are capable of checking their bias at the door until they prove otherwise in multiple cases.

[bigbadberry3]

I agree. They're grasping at straws. The argument could just as easily be turned around and the claim could (should?) be made that heterosexual judges should step down from the case because they couldn't relate personally to the discrimination against gays. Or since the majority of heterosexuals voted for the ban heterosexual judges should be forced to reveal their vote at the the ballot box showing their bias in the case before it ever reached their courtroom.

We have to assume that our judges are capable of checking their bias at the door until they prove otherwise in multiple cases.

Almost the exact argument I've made.

[IBCoupe]

What else do you expect? Those who support Prop 8 must have little to no appreciation for individual liberty in order to do so, and it should come as no surprise that they have little to no appreciation for the judicial system.

[Cold_Zero]

I was going to say, what else do you expect from Social Engineering? On either side.

[R/T Hemi]

I think most of you have missed the point here. The judge, having a potential interest in the outcome, should have,
a: disclosed his interest.
b: recused himself.

It doesn't matter if it's same sex marriage, or any other issue. If the judge has a potential interest in the outcome, fairness dictates he disclose or recuse himself. To do otherwise taints the appearance of an impartial bench.

[IBCoupe]

No. We do not force judges to do anything as a result of vague personal interests. The kind of interest you're pointing to is the kind of interest a judge has in seeing someone accused of murder removed from his town.

Just no. That's not how judicial ethics go. If he was a major stakeholder in a company that was getting ready to perform gay marriages, you might have a point. But no, we don't force judges to disclose or recuse on the basis of something in their personal life that they may or may not have a stake in. For all you know, he's got absolutely no interest in marriage, or that marriage would provide him no additional benefit, personally.

[stebo0728]

No. We do not force judges to do anything as a result of vague personal interests. The kind of interest you're pointing to is the kind of interest a judge has in seeing someone accused of murder removed from his town.

Just no. That's not how judicial ethics go. If he was a major stakeholder in a company that was getting ready to perform gay marriages, you might have a point. But no, we don't force judges to disclose or recuse on the basis of something in their personal life that they may or may not have a stake in. For all you know, he's got absolutely no interest in marriage, or that marriage would provide him no additional benefit, personally.

Interesting question I have heard batted around the past few days. If the Obamacare bill makes it to the supreme court based on the mandate being fought, which it looks like its going to in the next year or so, would justice Kegan have to recuse herself based on her contributions to the original defense of the bill? That would make the court split 4/4, and would make for a very interesting proceeding.

[mattblancarte]

Totally agree with IB.

We don't ask judges to recuse themselves on tax-policy cases because they pay taxes.

[stebo0728]

Well if you read the article, it seems the real problem is not that he was gay, but that he was involved in a long term gay relationship, that he may or may not wish was a marriage. This is a bit more than just saying "the dude's gay, he doesnt count". The proposition actually seeks to ban the possible next step of the relationship he is in. I dont know if that's grounds enough for him to recuse himself or not, but it sure sounds alot more plausible then if the argument was just that he was gay. Now maybe he has no desire to be married, he may even disagree with gay marriage altogether, being gay doesnt ultimately mean you HAVE to support gay marriage. At the very least though, I agree he should have at least disclosed his relationship, the same as any potential juror should disclose any biased ties to the case they are being considered for.

[Cold_Zero]

The issue would be if he (judge) had in the past or in his current capacity had given council on how he would rule or worked as an activist for either side. That would be a conflict of interest.

[bigbadberry3]

Upheld.

[Cold_Zero]

You are overruled, Mister! j.k

[stebo0728]

We had a case here where a guy brutally raped and murdered his wife. The judge in the case stuck down a plea deal, and told him that he should plead guilty, because she would throw the book at him in a trial. Now he may get the original plea deal back because her actions are being considered coercion to get his guilty plea. A guilty plea is supposed to be placed free of any fear or coercion. The guilty plea would have gotten him a solid 20 years, with no parole. Now if he gets his plea deal back he may only serve at most 5 years. Its unfortunate, because the judge was out of her wits in threatening the guy, but now this waste of oxygen may go free in 5 years because of it. Makes me wish we had a real Dexter roaming the streets.

EDIT - I guess "waste of oxygen" was a poor label, seeing as he will be wasting the oxygen either way. Still, the guy should definitely be doing hard time, but the emotional response of a judge may cause him to do very little time at all.

[Cold_Zero]

I fail to see how/why the judge would have had to recuse herself in this case.
Also, I would caution against championing vigilante justice, which I assume is the reference to the TV show Dexter. Don’t have Showtime and have never seen the show.

[stebo0728]

No I wasnt saying this judge needed to recuse herself, just that she had a pretty major loss of judgement. The guy may be granted his plea, end of story. And yes I was referring to Dexter. I dont champion vigilantism per se, only when it involves direct interests, and overbearing lack of competence on the part of the actual justice system. But someone out just cleaning up the streets, I mean this isnt Gotham city lol.

[mattblancarte]

Well if you read the article, it seems the real problem is not that he was gay, but that he was involved in a long term gay relationship, that he may or may not wish was a marriage. This is a bit more than just saying "the dude's gay, he doesnt count".

I did read the article, and am aware of the fact that the judge was in a long-term gay relationship at the time of ruling.

I don't think there is any merit in saying that if he wasn't in a relationship, the ruling would have been different.The core complaint is that the judge is gay.

[IBCoupe]

Stebo, I think even if Justice Kagan recuses herself (I'm not convinced that she will or should - many of the instances where she's recused herself so far have been unnecessary) it would still be a 5-3 or a 6-2 in favor of the law.

[Cold_Zero]

IBCoupe, you can correct me if I am wrong, but the Supreme Court has different rules governing on recusing themselves than the Federal District Courts and Justice Kagan does not have to necessarily recuse herself. I think it is based on the honor system (layman’s term).

I kind of think she should, as the Solicitor General for the Obama Administration, her office would have been consulted on the constitutionality of 'Obama Care' or if they could defend it in court. While I know she keeps insisting that she was not consulted, I dont believe it. You are telling me that you are the head attorney in the Federal Government and you weren’t consulted on the biggest piece of legislation to be drafted during that Administrations’ watch? If that is the case, I don’t think it speaks well to your competence. But I think that this is for a different thread.

[stebo0728]

Well if you read the article, it seems the real problem is not that he was gay, but that he was involved in a long term gay relationship, that he may or may not wish was a marriage. This is a bit more than just saying "the dude's gay, he doesnt count".

I did read the article, and am aware of the fact that the judge was in a long-term gay relationship at the time of ruling.

I don't think there is any merit in saying that if he wasn't in a relationship, the ruling would have been different.The core complaint is that the judge is gay.

All I'm saying, is that the odor is a bit stronger because of the relationship. It adds some merit to the argument. And I disagree with your assessment of the core argument, unless you aim to say that they misrepresented their core argument, as to say if he wasn't in a relationship, and just gay, the'd be fussing about that too? Mayhaps, but I'm going by what they've actually argued, not what I suppose they meant.

[stebo0728]

...it would still be a 5-3 or a 6-2 in favor of the law.

I wont begrudge you your dreams. Time will tell. And I dont know if she (should/would) recuse herself. I was merely putting it out there as to whether, you chiefly, thought she (should/would).

[IBCoupe]

IBCoupe, you can correct me if I am wrong, but the Supreme Court has different rules governing on recusing themselves than the Federal District Courts and Justice Kagan does not have to necessarily recuse herself. I think it is based on the honor system (layman’s term).

I kind of think she should, as the Solicitor General for the Obama Administration, her office would have been consulted on the constitutionality of 'Obama Care' or if they could defend it in court. While I know she keeps insisting that she was not consulted, I dont believe it. You are telling me that you are the head attorney in the Federal Government and you weren’t consulted on the biggest piece of legislation to be drafted during that Administrations’ watch? If that is the case, I don’t think it speaks well to your competence. But I think that this is for a different thread.

That's not the task that Kagan would have been given as Solicitor General. That's what the Office of Legal Counsel (possibly - its constitutionality would have been something Congress might have investigated more than the White House) would have been tasked to do, but Kagan's role was to represent the government before the Supreme Court, not to determine the legality of the law before it's been challenged.

As far as I know, there's no document that's been shown to suggest that she should resign. Her closest encounter with the Healthcare Reform cases came, apparently, when she assigned the task of defending the law to another lawyer.

Here's an article from a reputable news source that discusses the topic. I say "reputable news source" because it's hard to find in among all the dreck.

During the confirmation hearings, Sen. Tom Coburn (R) of Oklahoma asked Kagan if there was any time as solicitor general that she’d been asked to express an opinion on the legal merits of the health-care bill.

“There was not,” she responded.

...

Kagan has said that as a former solicitor general, she would be obligated to recuse herself from hearing 11 cases currently on the high court’s docket, because she played a role in preparing or presenting the government’s side in each of those cases.

In a written response to questions submitted by Senator Sessions, Kagan added that she would recuse herself in cases in which she approved or denied a recommendation for action in the lower courts. “I would also recuse myself from any cases in which I did not take such official action but participated in formulating the government’s litigating position or reviewed a draft pleading,” she said.

Kagan added: “In all other circumstances, I would consider recusal on a case-by-case basis.”

...

Kagan replied: “If I personally reviewed a draft pleading or participated in discussions to formulate the government’s litigating position, then I would recuse myself from a case. In my view, this level of participation in a case would warrant recusal.”

So, on what basis should Kagan recuse herself? On the theory that the Obama Administration approached her, knowing full well that they intended to keep her as a potential Supreme Court nominee, and asked her to espouse an opinion, preventing her from ruling on the law?

I think it's far more plausible that she had no part in the creation of the law's defense, aside from pointing to a lawyer in the office and saying, "This law is yours; do your job."

[IBCoupe]

...it would still be a 5-3 or a 6-2 in favor of the law.

I wont begrudge you your dreams. Time will tell. And I dont know if she (should/would) recuse herself. I was merely putting it out there as to whether, you chiefly, thought she (should/would).

I don't think she would. She's been very good about recusals where she had a role in crafting a defense (and knew which cases she would have to recuse herself from before she went before Congress), and it looks like she didn't here. If it comes out that she did craft the defense of the Healthcare Reform law, then she should recuse herself.

And the pertinent precedent, Stebo, not political analysis, is what leads me to my estimation of the Court outcome. Believe it or not, the one that's hopping back and forth between 2 and 3 against is Scalia.

[stebo0728]

I don't think she would. She's been very good about recusals where she had a role in crafting a defense (and knew which cases she would have to recuse herself from before she went before Congress), and it looks like she didn't here. If it comes out that she did craft the defense of the Healthcare Reform law, then she should recuse herself.

Very good, it does seem she likes to err on the side of caution, which is good. I expect that small bit to have a very large voice, especially in conservative media, when this bill finally hits the fan.

And the pertinent precedent, Stebo, not political analysis, is what leads me to my estimation of the Court outcome. Believe it or not, the one that's hopping back and forth between 2 and 3 against is Scalia.

I'll join you in anticipating, not a particular ruling, but that the court will place constitutional considerations above the slurring political currents.

[R/T Hemi]

No. We do not force judges to do anything as a result of vague personal interests. The kind of interest you're pointing to is the kind of interest a judge has in seeing someone accused of murder removed from his town.

Just no. That's not how judicial ethics go. If he was a major stakeholder in a company that was getting ready to perform gay marriages, you might have a point. But no, we don't force judges to disclose or recuse on the basis of something in their personal life that they may or may not have a stake in. For all you know, he's got absolutely no interest in marriage, or that marriage would provide him no additional benefit, personally.

I disagree. A federal judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." As you will note, the rule provides nothing more than a reasonable question of impartiality.

In this case, it's fairly obvious as he ruled in favor of a class of which he is a member. The proper action would have been to disclose his position to the parties, or barring that, excuse himself from the case. His impartiality is reasonably in question.

We saw this when the entire federal bench in Arizona refused to preside over the trial of the Tucson shooter. In that example, I'm quite sure each federal judge would have conducted a fair and impartial tribunal, however, ethics required them to recuse themselves when the reasonable appearance of impropriety exists, and they did.

[IBCoupe]

No, R/T, that's not reasonable.

And I'm not convinced that the Arizona judges were required to do anything of the sort. Permitted and required are two completely different things.

[s0m3th1ngAZ]

They should have got a eunuch to rule over the case. Oh wait but then he would have been biased against all marriages.
Such a quandary...

[Cold_Zero]

That's not the task that Kagan would have been given as Solicitor General. That's what the Office of Legal Counsel (possibly - its constitutionality would have been something Congress might have investigated more than the White House) would have been tasked to do, but Kagan's role was to represent the government before the Supreme Court, not to determine the legality of the law before it's been challenged.

So what you are saying is that the Solicitor General is never given advanced warning legislation that is being drafted or asked how easy a piece of legislation would be to defend or not to defend, as an administration is drafting the legislation? This has never happened in the history of the office. Their office exist in a vacuum. While it may not have been the case here, I find it hard that this office is left out of the loop. I suspect the task is categorized as 'other duties as assigned.'

Here's an article from a reputable news source that discusses the topic. I say "reputable news source" because it's hard to find in among all the dreck.

During the confirmation hearings, Sen. Tom Coburn (R) of Oklahoma asked Kagan if there was any time as solicitor general that she’d been asked to express an opinion on the legal merits of the health-care bill.

“There was not,” she responded.

...

Kagan has said that as a former solicitor general, she would be obligated to recuse herself from hearing 11 cases currently on the high court’s docket, because she played a role in preparing or presenting the government’s side in each of those cases.

In a written response to questions submitted by Senator Sessions, Kagan added that she would recuse herself in cases in which she approved or denied a recommendation for action in the lower courts. “I would also recuse myself from any cases in which I did not take such official action but participated in formulating the government’s litigating position or reviewed a draft pleading,” she said.

Kagan added: “In all other circumstances, I would consider recusal on a case-by-case basis.”

...

Kagan replied: “If I personally reviewed a draft pleading or participated in discussions to formulate the government’s litigating position, then I would recuse myself from a case. In my view, this level of participation in a case would warrant recusal.”

So, on what basis should Kagan recuse herself? On the theory that the Obama Administration approached her, knowing full well that they intended to keep her as a potential Supreme Court nominee, and asked her to espouse an opinion, preventing her from ruling on the law?

I think it's far more plausible that she had no part in the creation of the law's defense, aside from pointing to a lawyer in the office and saying, "This law is yours; do your job."

Because nominees dont like during their nomination hearing. But if she said she was not consulted, then there you go. She was not consulted. Some people have insinuated that emails from the office would hit to something different, but for the sake of not starting an argument I will drop it.

[stebo0728]

but for the sake of not starting an argument I will drop it.

Trust me, when the bill hits the SCOTUS in a year or so, this will be the #1 argument of the day.

[Cold_Zero]

Until then... This discussion is not about Kagan.