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Gay NJ Supreme Court Nominee Will Recuse Himself from Cases Involving Same-Sex Marriage

Last week, NJ Governor Chris Christie nominated two appointments to the state's Supreme Court. One of them, openly gay Bruce Harris, promised to recuse himself from future cases dealing with same-sex marriage, Bloomberg reports:

HarrisThe governor, 49, said today that Harris told him that he has advocated for gay marriage personally and as a politician.

“If confirmed to the court, he would recuse himself from that matter because he did not want there to be the appearance of bias on his part on that issue,” Christie told reporters. “My perspective on that issue was to put it aside because he’s not going to rule on that.”

Timothy Kincaid at Box Turtle Bulletin calls it the right decision:

Harris is not recusing himself because he is gay. That, as has been determined by Federal Judge Ware, is as irrational as insisting that he not act on matters involving African Americans because he is black.

Rather, Harris is recusing himself because he has advocated for marriage equality, sending an email to his representatives in which he uses the example of his own life to seek to persuade them to support the cause. And it is a long-held tradition that advocates for causes pledge to recuse on those issues so that their evaluation is based on their fitness for office and not simply be a legislative effort to dictate judicial results.

And while Harris may not be part of the upcoming judicial evaluation as to whether civil unions have met the mandate for equality that the court laid out, his presence on the bench will undoubtedly not go without notice. It is one thing to say that civil unions are “good enough for them”; it is quite another to tell an associate that “civil unions are good enough for people like you.”

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Comments

  1. I think that is unnecessary - no heterosexual judge would recuse themselves over straight marriage details, straight adoption details, or other heterosexual rights.

    Posted by: Tarc | Jan 31, 2012 7:55:27 AM


  2. @Tarc, it's completely necessary and i think you're missing the point. If a heterosexual judge had previously publicly advocated for anti-gay pro-straight marriage/adoption rights, then that judge would definitely recuse him/herself. Judge Harris isn't recusing himself because he's gay; it's because he's clearly advocated for one side of these issues and it would be easy to therefore make a claim that he is biased about these particular issues.

    Posted by: tctc | Jan 31, 2012 8:04:25 AM


  3. @TCTC.... So, based on your position you actually believe that Scalia, who has publicly advocated against marriage equality, will be recusing himself from any future supreme court cases about marriage equality? LOLOLOLOLOLOLOLOLOLOLOLOLOLOL

    Posted by: Tim NC | Jan 31, 2012 8:17:40 AM


  4. And anyone who has been born will recuse himself from abortion cases?

    Posted by: Jwl | Jan 31, 2012 8:26:45 AM


  5. The point about Scalia is valid -- but of course he has his own set of ethical principles.
    The key question is whether the recusal will make a difference in the case outcome. If the NJ Supreme Court has a tie vote on any appeal that comes to it, then the lower court's decision will remain in effect. So that makes it even more important to win the case in the NJ appeals court.

    Posted by: MiddleoftheRoader | Jan 31, 2012 8:28:42 AM


  6. Every judge has biases - just look at the Supreme Court, who singlehandedly put Bush back into the White House for a second term.

    Posted by: Jack M | Jan 31, 2012 8:30:33 AM


  7. The question is, if Civil Unions are as good as marriage according to some, then why aren't heterosexuals demanding them, for those who don't want to marry? I wonder if Chris Christie would have chosen one had they been available at the time he decided to marry and if not, why? How would these self-righteous politically expedient politicians have reacted if there was a movement to abolish marriage and replace it with CUs?

    Posted by: Robert in NYC | Jan 31, 2012 8:37:39 AM


  8. This is ridiculous! I respect him wanting to be a responsible judge, but he does not need to recuse himself because of this. Would another judge recuse themselves from making a ruling on, say, a law regarding driving simply because the operate an automobile? It is unnecessary!

    Posted by: Jim | Jan 31, 2012 8:40:57 AM


  9. By appointing him with the caveat that he recuse himself, Christie is ensuring a lean against same-sex marriage. We all know that politicians who appoint judges select those who are biased. Smart move by Christie. When criticized Christie will say "but I appointed a gay man" when in reality he has appointed a gay charlatan (Republican). Harris could thwart it easily enough by saying "no thanks" but his own desire for greed and power will prevent that. Sad.

    Posted by: OS2Guy | Jan 31, 2012 9:07:03 AM


  10. So Thurgood Marshall should have recused himself from civil rights cases?

    Posted by: cranky1 | Jan 31, 2012 9:13:02 AM


  11. sounds like quid pro quo to me. Christie offered him the job if he would not mess with his veto of gay marriage. They should both be impeached.

    Posted by: gaylib | Jan 31, 2012 9:17:51 AM


  12. I was at first upset about this - but I have to agree that advocating for a particular outcome of a dispute that may come before your court is different than simply being a member of a group that might potentially benefit from the outcome of a dispute that may come before your court.

    So, with regret, I feel Harris is doing the ethical thing. It certainly points up the moral lapse in Scalia's position. But, ya know, once confirmed - a judge can pretty much do anything he or she wants ... and a change of mind from something said at a confirmation hearing (much like a political campaign) is not unheard of.

    That would be an ethical lapse, too ... but one I can secretly hope for.

    Posted by: Zlick | Jan 31, 2012 9:36:57 AM


  13. should a white judge recuse himself from cases involving white people?

    Posted by: h | Jan 31, 2012 9:45:07 AM


  14. I agree that both should be impeached and removed from office. Good call on the gay charlatan (republican). African-American judges by extension can't rule on racial discrimination suits.

    Posted by: Todd | Jan 31, 2012 9:51:23 AM


  15. The ethical thing for Harris to do is not take the position.

    Posted by: homer | Jan 31, 2012 9:58:10 AM


  16. >should a white judge recuse himself from cases involving white people?

    A white judge who previously advocated for whiteness, yes.

    It's very lucky Clarence Thomas never did lifted a finger for black rights or he'd have to recuse himself from affirmation action votes.

    Posted by: RomanHans | Jan 31, 2012 10:19:57 AM


  17. I don't see other judges that are for out lasing abortion removing themselves from hearing cases for pro choice. So he should not have removed himself from this issue.

    Posted by: classychazy | Jan 31, 2012 10:26:01 AM


  18. @Jack W.: If you're referring to the Bush v. Gore US Supreme Court decision, that was Bush's first term, not second.

    Posted by: Tophu628 | Jan 31, 2012 10:26:46 AM


  19. Timothy Kincaid doesn't know what he's talking about. There is no "tradition" of judges recusing themselves merely because, as citizens, they took a public stand on some issue. None whatsoever. And you will notice that Timothy doesn't cite a single example. This is just ridiculous.

    Posted by: Glenn | Jan 31, 2012 10:28:15 AM


  20. I thought justices only reclused themselves if they were part of a former lawsuit that made its way up to the Court. Most people advocate for something. They can't recluse themselves everytime something they favor comes up to the court. I'm sure Christie knew this the whole time - very well played Mr. Governor. He gets credit for appointing a gay justice but now he doesn't have to worry about the justice deciding on gay marriage. Ugh, I sometimes I really hate my home state sometimes.

    Posted by: KP | Jan 31, 2012 10:45:12 AM


  21. Did Thurgood Marshall promise to recuse himself in school cases? Not by a long shot. Justice Marshall, argued before the SC in Brown v. Board of Education of Topeka (1954), did not recused himself in any case involving Brown and its progeny. In fact, one of his most famous opinions is a 63-page dissent in San Antonio School District v. Rodriguez (1973).

    Posted by: Carlie | Jan 31, 2012 11:05:38 AM


  22. @TCTC and @RomanHans:
    The parallel to a judge advocating for equality is not a judge "advocating for whiteness" or advocating "anti-gay pro-straight laws."
    The parallel to a judge advocating for equality is a judge advocating for equality in some other area.
    For example, if a black person manning a voting station were rejecting any voter whose arm is lighter than a brown paper bag and this judge had publicly spoken for equal voting rights, that's not "advocating whiteness."

    One reservation. I have about his decision is this: When there is an obvious injustice in society, it is difficult for fair-minded people NOT to speak up. It's easier to sit back and watch without care while four little black girls get firebombed at church or a kid shoots a gay classmate at school (etc.) if you lack an empathetic conscience. And then that's who's left to judge if every fair-minded judge recuses himself.

    Posted by: Gregv | Jan 31, 2012 11:12:40 AM


  23. This is ridiculous... esp. for a Supreme Court Justice for goodness sake. He is suppose to be able to put his personal beliefs aside and consider the issues and then rule. This guy is saying he can't do that. If that is the case, he isn't suitable for the office.

    Posted by: MikeH | Jan 31, 2012 11:38:56 AM


  24. @Middleoftheroader :

    "Scalia has his own set of ethical principles",,,,,,,,,, ha ha ha , you goy that right !

    Posted by: JackFknTwist | Jan 31, 2012 12:29:23 PM


  25. To people who have little idea how the justice system works, this soundbite of an idea may sound good. In reality, this is nothing less than a very dangerous attack on judges. This is unprecedented: judges only recuse themselves if they're related to the parties involved in a case, or if they've been previously directly involved in the case at hand.

    Think about it, people. If a judge previously issued a ruling that included a statement affirming a right, does that mean that judge will now have to recuse her/himself from all future cases involving that right? If any public advocacy for an issue disqualifies a judge, a judge who supported any kind of legal principle would be disqualified from cases involving it, disqualifying most judges from most cases!

    This is nothing less than a direct and toxic attack on "activist judges" by the right. This obsequious little Republican turd Harris is playing along. He will be trotted out as a good example by right wingers in any case involving any sense of fairness. And any judge who doesn't participate in this ridiculous sham will be condemned.

    Posted by: LetSodomRing | Jan 31, 2012 12:33:50 PM


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