Tamanaha on Recusal in Abortion Cases

Over at Balkinization, Brian Tamanaha has weighed in on the debate over judges recusing themselves in abortion cases.  An excerpt:

If these judges were remaining true to their opposition to abortion--if they acted with the courage of their convictions--it would seem that [they should] hear the cases and deny all applications. This would directly prevent abortions (at least for those minors who do not thereafter go to their parents for permission). Of course, some truly desperate minors who cannot confide in their parents might seek high risk (dangerous) abortions from unlicensed practioners who will ignore the consent requirements. But by taking [this] option in many cases the judge will have effectively prevented abortions. Judges against abortion can be even more effective in preventing them if they delay purposefully in issuing their denials long enough to make it difficult for the minor to seek out other alternatives. This . . . option is underhanded and repulsive, to be sure, but it would prevent abortions--so the higher moral end justifies the means.

. . . . [F]rom the standpoint of their opposition to abortion, judges who recuse themselves are not preventing any. What they are doing is keeping their hands clean while making someone else, a fellow judge, accept responsibility for deciding the case. After all, no judge wants to hear these cases, all of which have an unavoidably tragic element--these minors are the most vulnerable people in society in the most difficult situation imaginable. Adding to the burden they impose on other judges, the judges who recuse themselves expose their fellow judges to reprisal--to an increased risk of losing their judicial position in the next election--for stepping up to do the job the conscientious objector judge was unwilling to do.

The recusal option, when viewed in this way, seems neither consistent with their moral opposition to abortion nor with their institutional obligation to their colleagues, nor with their duty to apply the law. Moreover, if judges begin to recuse themselves partly out of opposition to abortion and partly out of fear of the possible reprisal at the next election (such mixed motives would be normal), the moral standing of recusal becomes shakier.

When you consider further that this practice opens a back door way to defeat the law--to eliminate the legal right of minors to obtain an abortion in situations where they do not want to seek parental consent--the recusal decision appears even more dubious.

Of course, these judges would (and should) recoil at the suggestion that they take the cases and uniformly deny requests. That course of action . . . would violate their oath to apply the law in an unbiased fashion, and would not be fair to the applicants. But, as Professor Koniak pointed out, by recusing themselves they have already taken a step down this path.

All things considered, a judge who cannot in good conscience apply the law fairly--who cannot do the job they have sworn to do--would seem to have only one option: resign.

Rob