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 #111 – Men Quit, Women Don’t ???


Blog #111 – Men Quit, Women Don’t ???

Abstract

A narrow blog, specifically for those  interested in the treatment of gender in the media who have seen a recent piece in the New York Times  headlined “Why Men Quit and Women  Don’t,” which purports to explain why a statistical finding that  the drop-out rate for women in the Boston Marathon this year is lower than for men has nothing  to do with gender but simply shows that women “thrive on adversity,” in this case “the need to juggle training in non-ideal circumstances [the worst weather in decades].” The statistics are pretty shaky, and it’s not clear why such an explanation is not strongly gender related. It is worth examining because, intentionally or not, it plays into the concern with the social stereotyping that  goes into the gendered attitude towards women, and tends to minimize that  problem by minimizing the role of gender.

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Why Men Quit and Women Don’t –

reads the headline by Lindsay Crouse in the Opinion section of the New York Times on April 20, 1018).[1]

The story is based on the fact that men dropped out of the Boston Marathon this year and previous years at a faster rate than women did: “Men quit and women don’t,” the story announces, and tries to explain the difference by examining the correlation between various physical or psychological or social characteristics of men and women. It finds that won’t do, and ends up claiming that “the simplest explanation [for women dropping out less than men] is not based on gender at all.”

But, in fact, it is directly related to gender, the social and cultural definition of male and female rather than the biological definition of female. You might think that a writer, if concerned about gender equality, might happily display the headline above to show that the gender stereotype of women as weaker than men is false, and argue that, the headlined facts prove that the idea that men do better than women in contests of strength and endurance, as in marathons, is a false and gendered idea. In fact, the article perversely argues that gender has nothing to do with the disparate results for men and women.

Yet gender does matter. Because Marathon drop-out rates are not simply a reflection of the physical difference between men and women.

To begin with, the article is based on a flawed statistical analysis. It does not in fact show that “men quit and women don’t.” It is elementary statistical nonsense, both in its sample selection and its lack of control for other variables. I   The men and women being compared are not randomly selected, 16,587 men chose to enter the Boston race, only 13,391 women entered it. The reasons for that difference need to be factored into any explanation for the different results which gender-related differences, .e.g. in income, time availability and responsibilities, status, expectations,  all are llikely to play some role.  The aticle itself lists some of them.

The artcle  finds that finishing rates for this year’s Boston Marathon “varied significantly by gender,” and then spends the rest of its time trying to show that, contrary to that finding, women don’t in fact quit less than men.  It is like arguing that women have shorter stays in hospitals than men because women are stronger than men, and it has nothing to do with the gendered treatment of women. It is, on its face, absurd, if done without controlling for why women go to hospitals in the first place, whether they can afford hospitalization as well as men, are insured as well as men, whether the hospitals are military hospitals or specialized or general care hospitals, charity hospitals or research hospitals or psychiatric hospitals whether they are admitted on an emergency basis or are long-term than men, etc.

Both proportionally and in total numbers, more men run in marathons than women do.  Maybe men who run in marathons are richer than women who do, women being paid less and poorer, can less afford the time to run or train to run, so the women who do actually get to run in the Boston Marathon are exceptionally well fit compared to the men who run, more of whom are able to afford to run and do so even without special training.  If men and women were exactly alike, proportionately more men would drop out than women, because the men who started were a less selective group among all men, than women were among all women?  The fewer women who entered marathons had been more highly selected, i.e. healthier, more ambitious, hardier, than the average woman, but therefore proportionately also once entered in the race, proportionately dropped out less?

But then, the question is, why do not more women enter marathons?

The history of gender discrimination in marathons should not be ignored.

The population that enters marathons is in any event hardly representative of a cross section of all people, and to draw conclusions about all people from a sample that is not representative of all people, or compare two samples, e.g. men and women that are not similarly selected, are violations of the most elementary rules of statistical analysis. And to conclude that the difference between men and women in drop-out rates is not gender related after just writing that men start marathons more aggressively than women because that is in the nature of men, and that and women are often discouraged from being athletic and competitive as unwomanly, is to abandon any pretense of understanding either gender or statistics.

And not gender-related? Gender differences are of a different order than differences of sex, and require quite different approaches if equality with justice is a concern. The history of gender discrimination in running competitions and women’s active struggle to overcome it needs to be told, and helps explain the additional motivation of women holding up without quitting in marathons. Women indeed had to be more aggressive than average men if they wanted to run in a male dominated and often legally exclusively male field. The first Olympic marathon was held in 1896. It was open to men only. Women were allowed to begin competing in marathons starting in 1972.[2]Women were excluded from participation in the Boston Olympics Marathon until 1984.[3] The history is not well known; it is not mentioned in the article.

The article concludes:

…the simplest explanation is not based on gender at all. This Boston Marathon was ideal for people who thrive in adversity. Top spots for men and women went to amateur runners who juggle training in non-ideal circumstances around work and family… the female runners who made it in Boston had already overcome more social obstacles than men. They may simply be tougher. hardly a random selection.

And that’s not a characterization of the normal gendered role of women?!

Maybe if men had to successfully “juggle training in non-ideal circumstances around work and family,” as women disproportionately now do, which  Lindsay argues makes women’s experience less likely to let them drop out than men, then men should just get more training in circumstances like  those facing women, and thereby toughen up to stay the course better than they do now. And women might be provided with greater and fairer social support, economic support, status and recognition, opportunities to train and to run.Those  might not be a bad ideas in  any case…

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Footnotes

“Woman who blazed a trail for equality in marathons hits London’s starting line. Kathrine Switzer, the first woman to officially compete in the Boston marathon, will fire the gun on the elite race,” The Guardian. reads a headlilne in the Guardian. Available at https://www.theGuardian.com/sport/2018/apr/21/kathrine-switzer-boston.

“The thousands of spectators who line marathon routes are famous for screaming encouragement, but it has not always been that way.”‘One guy shouted at me, ‘you should be back in the kitchen making dinner for your husband’.”It is one of many moments that Kathrine Switzer recounts as she talks about her memories of becoming the first woman to officially run a marathon. It was 1967 and women were not allowed to run more than 1,500 metres in sanctioned races. Marathons were for men.“https://www.telegraph.co.uk/athletics/2018/04/21/marathon-trailblazerkathrine-switzer-just-20-year-old-kid-wanted/

In 1972, women were officially allowed to run the Boston Marathon for the first time.

Opinion | Why Men Quit and Women Don’t – The New York Times

https://www.nytimes.com/2018/04/20/opinion/boston-marathon-women-nurse.htm [1]

[2]An excellent detailed history of the struggles needed before wwomen were evenly  allowed to run in major marathons, ncluding the Olympics, is in Olympic Marathon, by Charlie Lovett, excerpted and available at “The Fight to Establish the Women’s Race” http://www.marathonguide.com/history/olympicmarathons/chapter25.cfm

 

[1] Available at https://www.nytimes.com/2018/04/20/opinion/boston-marathon-women-nurse.html.

[2] “Women and exclusion from long distance running.” Lisa Wade, PhD on April 21, 2017. Sociological Images. https://thesocietypages.org/socimages/2017/04/21/women-and-exclusion-from-long-distance-running/

[3] Before 1972, women had been barred from the most famous marathon outside the Olympics-Boston. That rule did not keep women from running, though. In 1966, Roberta Gibb hid behind a bush at the start of the Boston Marathon, sneaking into the field and finishing the race in an unofficial time of 3:21:25. She was the first woman known to complete the arduous Boston course. Gibb had been inspired to run by the return of her race entry with a note saying that women were not physically capable of running a marathon. Charlie Lovett Olympic Marathon, “The Fight to Establish the Women’s Race”, available at http://www.marathonguide.com/history/olympicmarathons/chapter25.cfm