Bryan Fischer
Ginsburg and Kagan must recuse - the law demands it
By Bryan Fischer
April 24, 2015

Follow me on Twitter: @BryanJFischer, on Facebook at "Focal Point"

Host of "Focal Point" on AFR Talk, 1-3pm CT, M-F

Supreme Court justices Ruth Bader Ginsburg and Elena Kagan must recuse themselves from the upcoming decision on homosexual marriage.

The reason is simple: their impartiality on the matter has been hopelessly compromised.

Here's how Title 28, Part I, Chapter 21, Section 455 of the U.S. Code reads (emphasis mine): "Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned."

Thus any justice who has tipped his hand on how he would vote on gay marriage, any justice who has taken sides, any justice whose ability to be objective on the matter in question, has a legal, moral, ethical and professional duty to withdraw. In fact, he would be violating federal law if he didn't. His sacred, sworn duty as a justice is to uphold the law, not break it.

Both Kagan and Ginsburg have performed same-sex wedding ceremonies. Ginsburg has at least three and maybe five such ceremonies under her belt, and she had the effrontery to perform one of them in the chambers of the Supreme Court itself.

Kagan likewise performed a highly publicized same-sex ceremony for a former law clerk in Maryland just last September.

According to the Washington Post, Ginsburg fully intended to send a message when she performed her first sodomy-based wedding ceremony. "I think it will be one more statement that people who love each other and want to live together should be able to enjoy the blessings and the strife in the marriage relationship." (Emphasis mine.)

I find the words "statement" and "should" unambiguous. This ceremony represented a personal declaration on her part that same-sex marriage ought to be legalized.

Ginsburg later said same-sex "marriage" represents the "genius of our Constitution."

Amanda Frost, professor at American University Washington College of Law, was openly critical of Ginsburg on a different but equally explosive social issue, abortion, for publicly taking sides on the part of the pro-death crowd in a Texas case.

"She should have erred on the side of caution and avoided making any statements about legislation at issue in a pending case," said Frost. She added said that under the federal law governing the disqualification of judges, including Supreme Court justices (emphasis mine), recusal is required when a judge has "expressed an opinion concerning the merits of the particular case in controversy."

There can be absolutely no question whatsoever that Ginsburg's and Kagan's judicial actions raise serious questions about their ability to be impartial when the same-sex case comes before them for adjudication. Rather than being impartial on the matter, they have shown themselves to be gay-marriage activists and de facto members of the homosexual lobby.

Imagine, if you will, a parallel scenario. The sale of marijuana is now legal in just two states, Colorado and Washington. Suppose a legal challenge has been raised against state laws which make the sale of marijuana illegal in various and sundry of the other 48 states. Now imagine that various circuit courts of appeal have issued conflicting rulings and the case at last has arrived at the Supreme Court.

Now just for the sake of argument, imagine that one of the justices had on occasion traveled to Washington to run the cashier's stand at a pot store as a favor to the friend who owns the store and to demonstrate how enlightened and culturally advanced he is. Imagine he then publicly declared, "This is my statement that people who want to get high should be able to enjoy both the pleasures and the pain of marijuana."

Does anyone think he could possibly render an objective decision in such a case? By his actions, he would have clearly taken sides on the matter and would have no option but in good conscience to step aside.

It is far more common than people think for a Supreme Court justice to recuse himself because of evident conflict-of-interest and impartiality questions. Chief Justice John Marshall, for instance, recused himself in cases in 1813 and 1816 because he had done business with one of the plaintiffs.

Sandra Day O'Connor routinely recused herself from cases involving telecommunications firms because she owned stock in such firms, and Stephen Breyer has done the same for cases involving insurance companies.

(Ginsburg, in stark contrast, refused to recuse herself in 20 cases in the 1990s that involved companies in which her husband owned stock.)

Chief Justice William Rehnquist disqualified himself from cases argued by an attorney who had testified against his confirmation to the Court.

Antonin Scalia recused himself on a First Amendment case involving the phrase "under God" in the Pledge of Allegiance because he had previously given a speech in which he stated that the plaintiffs' claims were meritless.

Samuel Alito likewise has recused himself dozens of times, apparently due to the possible appearance of financial conflicts of interest.

Kagan clearly understands the principle of recusal, since she stepped off the bench for 21 of the 55 cases the Court heard in her first term because of her prior work on those cases as Obama's solicitor general. Knowing her objectivity would be in question, she wisely and ethically removed herself. Overall, she has recused herself perhaps as many as 100 times.

There can be no doubt that the decisions of Ginsburg and Kagan raise thoroughly reasonable questions about their ability to be neutral, impartial and objective in gay "marriage" cases. And thus the legal standard of Section 455 has clearly been met and exceeded. They have a responsibility as a matter of conscience and legal principle to withdraw from the homosexual marriage case, leaving the other seven justices to deliberate and rule.

Bottom line: Ruth Bader Ginsburg and Elena Kagan have an ethical, moral, professional and constitutional duty to recuse themselves in this spring's same-sex "marriage" case. It's. The. Law.

(Note: this column in a slightly different form was first published on January 19, 2015. Unless otherwise noted, the opinions expressed are the author's and do not necessarily reflect the views of the American Family Association or American Family Radio.)

© Bryan Fischer


The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
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