Eagle Forum Legislative Alerts

Wednesday, June 10, 2015

Ginsburg and Kagan Should Recuse Themselves

The job of a judge is much like that of a baseball umpire: to call balls and strikes, in other words, to apply the rules of the game with fairness and integrity. We wouldn’t tolerate an umpire who roots for one team in a game. Why would we do any different with judges? But as the Supreme Court considers whether to redefine marriage, two justices have already shown that they support one team over the other. Justices Elena Kagan and Ruth Bader Ginsburg have both presided over same-sex marriage ceremonies. In doing so, they’ve run afoul of the Code of Conduct for U.S. judges, which forbids them from lending their prestige to a cause they might have to decide.

Justice Ginsburg has done even more to demonstrate that she’s already made up her mind about same-sex marriage. After the Supreme Court announced that it would take this case, Ginsburg gave an interview to Bloomberg News. The reporter asked her whether some parts of the country might not accept a ruling that makes same-sex marriage a national right. Ginsburg responded, “I think it’s doubtful that it wouldn’t be accepted. The change in people’s attitudes on that issue has been enormous. … It would not take a large adjustment.” This interview also violates the Code of Conduct, which forbids judges from speaking publicly on the merits of a pending case.

Our judicial system depends on all parties getting a fair and impartial hearing. Judges are expected to go out of their way to maintain the integrity of the process and to keep an open mind until they hear the arguments. Supreme Court Justices Kagan and Ginsburg, as well as Supreme Court Justices Stephen Breyer, Antonin Scalia, and Clarence Thomas, have frequently stepped back from cases in which they could be seen as biased. Letting Justices Kagan and Ginsburg decide this case about the definition of marriage after they’ve already made up their mind before they heard the arguments would deny justice to the parties in this very important marriage case.

Listen to the radio commentary here:

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