Wednesday, May 2, 2007

90's Flashback: An attempt to force a judge with "fervently-held" views on abortion to recuse himself

Don't you love the life you killed
The priest is on the phone
Your father hit the wall
Your ma disowned you
Don't supposed I'll ever know
What it means to be a man
Something I can't change
I'll live around it

Goo Goo Dolls, Slide, on Dizzy Up The Girl (Warner Bros. 1998) (deciding between abortion or marriage).

Modern adult contemporary radio stations have 90's flashbacks during the lunch hour; now blogs do too.

In light of Prof. Geoffrey Stone's "Our Faith-Based Justices" -- certainly the most famous law professor piece of 2007 -- here is a historical footnote in the abortion wars. Attempts to erode the legitimacy of judicial decisions on account of the judge's religious beliefs are not new, of course. However, direct attacks on the judge's ability to preside over a case are to my knowledge rare. Here is one example from the mid-1990's. In an abortion clinic's civil action brought against protesters under RICO, plaintiffs moved that Judge John T. Noonan, Jr. -- a Roman Catholic -- recuse himself because his "fervently-held religious beliefs would compromise [his] ability to apply the law." Feminist Women's Health Center v. Codispoti, 69 F.3d 399, 400 (9th Cir. 1995) (subscription required). Noonan denied plaintiffs' motion, citing Article VI's Religious Test Clause. Here is an excerpt of the judge's order:

[T]he plaintiffs qualify my beliefs as “fervently-held” as if to distinguish my beliefs from those that might be lukewarmly maintained. A moment's consideration shows that the distinction is not workable. The question is whether incapacitating prejudice flows from religious belief. The question is to be judged objectively as a reasonable person with knowledge of all the facts would judge. As long as a person holds the creed of one of the religious bodies condemning abortion as sinful he must be accounted unfit to judge a case involving abortion; the application of an objective, reasonable-person standard leads inexorably to this conclusion if the plaintiffs' contention is supportable. No thermometer exists for measuring the heatedness of a religious belief objectively. Either religious belief disqualifies or it does not. Under Article VI it does not.

The plaintiffs may object that the disqualification applies only to cases involving abortion; they are not disqualifying Catholics, Jews, Mormons and others from all judicial office. This distinction, too, is unworkable. The plaintiffs are contending that judges of these denominations cannot function in a broad class of cases that have arisen frequently in the last quarter of a century. The plaintiffs seek to qualify the office of federal judge with a proviso: no judge with religious beliefs condemning abortion may function in abortion cases. . . .The proviso effectively imposes a religious test on the federal judiciary.
Id. at 400-01.

It seems clear that a frontal assault on judges because of their religion is bound to fail, and thus critics are reduced to mere skirmishes. Indeed, Ed Whelan at Bench Memos reported Monday that Prof. Stone has engaged in some tactical redeployment in the wake of criticism. Perhaps there are creative thinkers who are framing legal arguments on recusal to avoid the Religious Test Clause, but at the moment, the battle appears to be on the grounds of the court of public opinion.