Blog #120 — Roe vs. Wade, An Alternate Approach2: Recusal


Roe vs. Wade,  An Alternate Approach2: Recusal

The nomination of Brett Kavanaugh to the Supreme Court has caused much concern among defenders of Roe vs. Wade. They realistically are concerned that that landmark women’s rights decision is in danger of reversal if Kavanaugh is appointed. But that concern should also focus on the actions of President Trump that make a reversal likely, not only on the possible positions of a new judge, whether it be Kavanaugh or another.

Contrariwise, the President’s announcement that he would not nominate anyone to the Supreme Court who would uphold Roe vs. Wade may In fact be a path to protect that decision from reversal for at least the next three rounds of national elections.

The danger of a reversal of Roe vs. Wade is one which Trump has created, and Trump’s involvement may offer the route to a positively desirable solution

Here’s how.

It is inappropriate for a sitting judge to prejudge a case before him, and likewise for a candidate for a judicial position to have a commitment to a particular outcome in any case likely to come before him before hearing that case. We do not know whether Trump asked Kavanaugh for a commitment to overrule Roe vs. Wade, But we do know that  Kavanaugh, in accepting his nomination, knew that  it was made by someone who would not have made it if he believed the candidate would not rule as he had proclaimed was his expressed desire. The appearance is certainly that Kavanaugh would be responsive to that desire. The scale of the controversy about his appointment is testimony to how widely that appearance is shared in the general public.

There is an ethical, constitutional, and just, means of resolving the dilemma that President Trump has created by using his constitutional power of nomination to the Supreme Court to interfere in that Court’s decision in a particular case bound to appear before it . Trump has promised publicly in advance that he would not appoint anyone to the Supreme Court who would support Roe vs Wade. Any person appointed after he made that statement owes his or her appointment to a willingness to prejudge a case that is likely to come before him/her.

Any person then appointed would be required ethically, to recuse himself for consideration of the case n question. The candidate cannot be asked, prior to appointment, what his position would be should such a case arise. Any answer he might give would taint his participation if the case did arise.  The Judicial Code of the United States Code  provides[1], in the section captioned “Disqualification of justice, judge, or magistrate judge,” that a federal judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” And Canon 1, of the Model Code of Judicial Conduct holds that “A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety’.[2] Kavanaugh should disqualify himself from hearing Roe vs. Wade if it comes before him.

So, President Trump, by his attempt to impose an unethical restraint on any appointee in his power to appoint to the Supreme Court has undermined his own ability to achieve his own objective, undermining Roe vs. Wade. Kavanaugh should ethically refuse to accept the appointment unless he first affirms in advance that he will not follow the desires of his appointing authority, an unlikely scenario.[3] The result will be that it will be a court with only eight voting members that will review and decide a new Roe and Wade. Justice will have been served

If, however, Kavanaugh nevertheless accepts the appointment, he may still recuse himself from hearing Roe vs. Wade if it should come before him. If he or she does not, the other 8 members of the Court will have it in their power to ask the new appointee to disqualify himself from joining them in the consideration of that case

If they do not, :a lawsuit might  be filed enjoining the Supreme Court from permitting a new appointment to sit on any case involving Roe and Wade, because of the inevitable taint arising from Trump’s intervention. . If that suit reaches the Supreme Court, it is obvious that the new appointee whose qualification to sit on the case is at issue must recuse himself from hearing or voting on the matter.  That suit will thus again be heard by the other eight sitting members of the bench.

In any case, Roe vs. Wade will have been saved from being put to a vote by a Court                                                    under the unconstitutional pressure of a hostile President’s invasion of the independence established by the Constitution for the Court.

The advantage of focusing on the appropriateness of recusal as a solution to the problem of Kavanaugh’s anti-Roe vote is two-fold. First, to protect that decision in keeping with the Constitutional provisions for separation of powers[4] and the Judicial Code’ provisions on impropriety, and in accordance with intuitive feelings of fairness and justice, with those political consequences.  But, Second, to place the responsibility for the problem squarely on the shoulders of the President, and in fact to go further and prevent his achieving his desires for the rest of any term in office he may enjoy. Any new appointee to the Supreme Court will face the necessity of recusal just as Kavanaugh does. Thus Roe vs. Wade will be better protected at least from any future action of Donald Trumps if a new appointment should again come within his power.

 

[1] 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,”

[2] Canon 1 of the American Bar Association’s Model Code of Judicial Conduct.

[3] There are   in fact calls by Senator Schumer  for Kavanaugh to recuse himself because of his own freely-offered opinions about  Roe vs. Wade in a 2017 lower court case (see https://www.vox.com/policy-and-politics/2018/7/12/17564048/brett-kavanaugh-roe-wade-views), and for opinions in another matter, the Mueller investigations, but on the grounds of Kavanagh’s own prejudgment. Those do not rest on the constitutional argument made here.

[4] While Trump ’s commitment to achieve a particular result in a matter before the Supreme Court could well be considered a violation of the Constitution. It is not readily apparent how such a challenge might be made effective other than through the political process.

 

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Blog #119 – Roe vs. Wade, an Alternate Approach: Recusal


Blog #119 – Roe vs. Wade and Supreme Court Appointments

Trump’s promise not to appoint anyone to the Supreme Court who would hesitate to overturn Roe vs. Wade is unethical and an act which invalidates any appointee to the Court who if appointed ruled pursuant to it.  It would violate the U.S. Judicial Code and the ABA’s Model Code of Judicial Conduct. Were Kavanaugh to be appointed, he would have to recuse himself from take part in the consideration of that case, leaving the decisions on it in the hands of the remaining 8 court members. And that obligation to recuse himself would be an on gong one, as long as Trump remains in office – an obligation which might be thrust upon him by the remaining members in considerations from which he would need to recuse himself. .

Those concerned about the future of Roe vs, Wade to the next Supreme Court if Kavanaugh is on it are properly barking loudly out of concern, but up the wrong tree. The problem is one which Trump has created, not Kavanaugh, and which an attack on Trump’s involvement offers the route to the best solution: the prospect of a recusal of anyone he nominates from consideration of the case any time within his own term of office. .

for a more detailed statement of the argument, see pmarcuse.Wordpress.com, Blog #120 – “Roe vs Wade, An Alternate Approach: Recusal2,”

 

 

Blog #116 – Robert Mueller’s Report Song to Congress


The Robert Mueller song, as he presents his final Report to Congress.

 

To the Tune of the Chiquita Banana commercial:

I’m Chiquita Banana, and I’ve come to say

Bananas must ripen in a certain way….”[1]

——————–

My name is Robert Mueller and I’ve come to say,

Investigations must be undertaken in a certain way.

You can’t just claim that what so and so did was wrong

You have to have evidence that is clear and is strong.

You have to say what this man or woman did on a certain day

Violated a certain law at a certain place in a certain way.

This is what he did, and this is the person that saw him do it,

This is what he said he did, and this is why it’s obvious his story blew it.

These are the penalties that can be applied  that the law prescribes,

Only made more severe if you try to evade them with lies.

 

So here is my report:  I know that it’s 430 pages long

But what it describes was also very wrong wrong wrong.It’s the Congress that determines what’s wrong and what’s right.

My job is only to see how the facts fit what Congress set out, and how tight.

Now what happens, when, and to whom is up to the courts to determine

Whether those who did it were well-intentioned or were vermin.

I’ve finished the job I was hired to do,

Now it’s up to those that hired me to see the matter through.

 

If I can be of any more help, please do let me know,

Otherwise, I admit, I’m very happy to go.

Good bye, and best wishes.

Robert Mueller.

 

[1] https://www.youtube.com/watch?v=RFDOI24RRAE    It was a United Fruit commerciaI. If you have trouble finding it, it’s from 1940 and the oldest a google search for Chiquita Banana commercial produces; ‘ll try to get the exact url for it shortly. It;s great on its own.