Less than three hours ago, I wrote that anti-equality activists "will never stop outdoing themselves with their own stupidity."
Between that time and now, this headline has appeared on NOM's blog:
Here's
the statement:
The National Organization for Marriage (NOM) today issued a demand that U.S. Supreme Court Justice Ruth Bader Ginsburg recuse herself from hearing the pending same-sex marriage cases because of comments she gave in a media interview that foreshadows her ruling in the upcoming cases even before they are briefed or argued.
Once again, NOM, I would like to ask how you came to the conclusion that what you demand of the Supreme Court carries any weight at all. What you say doesn't matter in the slightest. I know you think that you're somehow the legitimate authority to decide these matters, but you're not. Do you really think Justice Ginsburg will see that post and think "Oh my God, NOM says I have to recuse myself! I'd better do it right away!"?
If she fails to recuse herself, NOM will ask Congress to conduct an investigation of her conduct and to consider legislation to discipline justices who speak out publicly about pending cases.
From that, I'm guessing that you don't know that Congress cannot pass ex post facto laws.
"Justice Ginsburg has brought disrepute on the Supreme Court and eliminated any pretext that she will approach the marriage issue with an open mind when it comes before her. Because of this prejudice, federal law requires her to remove herself from hearing the cases," said Brian Brown, NOM's president. "If she does not step aside, we will ask Congress to investigate the matter and pursue legislative remedies."
There's nothing wrong with having an opinion on how a case should be decided before it is decided. Judges don't have to go into oral arguments exactly 50-50 every time and stay that way until they make up their mind. All judges go into a case leaning one way or another. Why do you think that at oral arguments, they often ask questions that show that they favor one particular side? Through reviewing the Constitution and previous case law, they will often form an opinion before they issue the final decision.
There's only ever a problem if they have reached that position through something other than constitutional interpretation. If they are going to rule one way or another because of a reason other than their interpretation of the Constitution, there's a problem. But that's not what this is. Justice Ginsburg's (correct) interpretation of the Constitution leads her to the conclusion that it allows for everyone to be allowed to get married. That she has formed that opinion before deciding the case is no reason for recusal.
Ginsburg gave a media interview this week to Bloomberg where she said "it would not take a large adjustment" for the American people to accept a ruling redefining marriage and that, "In recent years, people have said, 'This is the way I am.' And others looked around, and we discovered it's our next-door neighbor — we're very fond of them. Or it's our child's best friend, or even our child. I think that as more and more people came out and said that 'this is who I am,' the rest of us recognized that they are one of us." Ginsburg previously has presided at same-sex 'marriage' ceremonies.
This is not what you think it is. All she's saying is that the American people will be okay with nationwide marriage equality. All she's saying is that they will not freak out about a favorable Supreme Court ruling. If anything, this is reassurance that she will not be biased by, say, popular opinion. She has no reason to be fearful of the decision that she will make because of how people will react to it. This makes her even more able to make an unbiased decision.
Federal law (28 US Code Sec. 455) requires federal judges to disqualify themselves "in any proceeding in which [her] impartiality might reasonably be questioned."
All impartiality means is the ability to not unfair favor one side over another. It does not mean that you can't favor one side or another at all. You absolutely can favor one side over another. If you weren't allowed to, you could never make any decision at all. All decisions favor one side or another. You just can't favor one side or another
for the wrong reasons. You can't let inappropriate factors influence your decision. But one's interpretation of the Constitution is not an inappropriate factor.
"Justice Ginsburg has made it crystal clear that she is going to rule in favor of redefining marriage when these cases come before her," Brown said. "We demand that she comply with federal law and disqualify herself as she is required to do. If she refuses, we will ask Congress to act."
And anti-equality justices haven't?
Justice Alito wrote in Windsor that the "Constitution does not guarantee the right to enter into a same-sex marriage". He was joined by Justice Thomas. And Scalia? Well, not much needs to be said there.
Ginsburg's highly inappropriate media commentary is being used by advocates for same-sex marriage who also see it as a foreshadowing of her ruling. The Human Rights Campaign called her comments "taking a bold stand for progress and equality, stating that the country is ready for marriage equality." They are using her comments to recruit signers to a brief they plan to submit to the Court.
"The impartiality of judges is the very foundation of our legal system" said Brown. "When you have a situation where a judge has already decided how to rule on a pending case before it is even presented or argued, the integrity of the judicial system is called into question. This goes way beyond the issue of same-sex marriage and cuts to the heart of whether our federal judiciary can be trusted to fairly consider and adjudicate important issues. Ginsburg comments suggest they cannot."
No, NOM. What actually would be bad for the federal judiciary would be for federal judges to bend to the whims of groups like you, for them to see themselves at your beck and call. Any recusal that occurs as a result of the efforts of an activist group would be an actual threat to the federal judiciary. Justice Ginsburg's comments are not such a threat. She's right.
I'm much more inclined to trust one of the most brilliant Supreme Court justices ever than I am to trust a group that devotes itself to keeping a group of people as second-class citizens.