Skip to main content

View Diary: What Would Roberts Say about This? (119 comments)

Comment Preferences

  •  I'd love to hear what Oliver Wendell Holmes (none)
    would say about these idiots.

    "Young man," he'd thunder, "you're in a court of law, not a court of morality!"

    Then he'd beat them to death with his cane.


    Defending bad taste and liberalism since 2005.

    by jurassicpork on Mon Sep 05, 2005 at 02:41:35 PM PDT

    •  Part of Tennessee law on judicial duties (none)
      can be found here.  As with most such rules, these require a judge to hear the cases before them unless they must disqualify themselves.  Canon 3 (E) lists some, but explicitly not all ("including but not limited to") potential reasons for disqualification.   The listed reasons relate to when a judge has a personal stake, financial or otherwise, in a case.

      More relevant, perhaps, is Rule 11, the court rule that follows the Canon of Judicial Ethics.  Subsection VII contains provisions for appointing a substitute judge when the one to whom the case was assigned is "incompetent" to hear the case under Tennessee law.  Usually, in such case, "incompetence" refers to whether a judge possesses the necessary faculties to hear a case, the ability, for instance, to stay awake, rather than whether he or she would be good at it.  I don't know whether the definition could cover a judge with personal or religious objections to a particular law, but I'll try to find the referenced statutes and report back.

      I would hope, however, that the state's definition of "incompetence" would include a case where, for religious or personal reasons, a judge finds himself or herself unable to apply a given law.  I can assure you that there are dozens of judges, maybe hundreds, on the federal and state level, with such moral or religious objections to capital punishment that they would be unable to serve conscientiously on a case in which the death penalty is a possibility.  

      The Right would love nothing more than to force those judges to leave the bench, and not just because of their position on the death penalty.  Consider, for instance, the tactics of prosecutors who include charges which might carry death even in cases where they don't particularly want the death penalty applied because they know that disqualifying pro-abolition jurors will give them a jury more likely to convict, regardless of the penalty involved.  Do you really think conservatives would hesitate to use similar tactics against judges who oppose the death penalty?  

      In my own experience, I had a judge recuse himself from accepting a guilty plea under the so-called "Alford doctrine" because of personal objections to the doctrine.  Under "Alford," a person can enter a guilty plea without admitting guilt rather than face a trial which would more than likely result in a far harsher sentence.  The particular judge in that case is, in my opinion, one of the finest judges in the state of Connecticut.  It would make no sense to force him to step down because of his deeply-held objection to the particular law involved when the case could simply be transferred to another docket and handled by be someone who felt differently.

      There are already too few good judges out there.  Let's not exacerbate the problem by adopting a short-sighted rule that forces a significant number of good ones off the bench.

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site