Wednesday, December 20, 2006


To all of you who urged me to continue blogging despite the mud-slinging, I express my gratitude. In particular, I was convinced to continue by an e-mail from Lucia Liljegren forwarded to me by my former law clerk, the distinguished law professor and author, Eric Muller. Without your encouragement I would have missed the opportunity to discuss the remarkable opposition stance by Senator Sam Brownback of Kansas to the nomination of Janet Neff, a Michigan state judge, to the Federal District Court.

Let me see if I understand this. So a person is unqualified for the federal bench because she attended a "same-sex commitment ceremony for the daughter of her long-time neighbors." (N.Y. Times 12/19/06) Not presided at, but ATTENDED! But even worse, this "impediment" could be removed by the Faustian bargain of her agreeing to recuse herself from all cases involving same-sex unions! Nothing is more symbolic of the efforts to pervert the federal judiciary than the attempt to impose this condition upon a nominee.
Forget for a moment the insult to the fundamental principle of the separation of powers, and consider the logical application of the Senator's condition. If her mere attendance at this function puts into question her impartiality sufficient to require her recusal in all cases involving same-sex unions, what of the nominee who has witnessed an execution? Is he or she disqualified from hearing all death penalty cases? What of the nominee who regularly attends church services or attends a wedding at a church or synagogue? Must she recuse herself in all cases involving church/state matters? Are former prosecutors or criminal defense counsel barred from hearing all criminal matters? Is the judge who reads the daily newspaper barred from deciding matters which relate to freedom of the press?

I concede that some of these examples are absurd, but so are the Senator's grounds for opposing the nomination and his condition for confirming it (although he indicates that he might oppose it nonetheless). Passive attendance at a celebration certainly should not be a grounds for disqualification to the federal bench; nor should the expression of views on controversial matters. Although some nominees have denied it, do we want judges who have have never considered, spoken or written on such controversial issues as same-sex marriage, abortion, stem cell research, the death penalty, etc. Their positions or views may cause senators to vote for or against their confirmation, but a disqualification or recusal agreement should never be exacted as a condition to confirmation, particularly by a single senator.
The Senator's attempt to mold the judiciary in his own image should give us all pause and concern. It is a sad day for the judiciary and the country when attendance at a friend's celebration is cause for disqualification.

Warning: Don't attend Mary Cheney's baby shower if you want to be a federal judge.

No comments: