By MIKE MANNO
If you thought the era of Trump had ushered out “political correctness” in the judiciary, sadly, you’re wrong.
The latest example involve Kentucky family law Judge W. Mitchell Nance who was reprimanded by the state’s Judicial Conduct Commission and forced to resign. And what was his offence?
Well it seems the good judge doesn’t believe it is in a child’s best interest to be adopted by a practicing homosexual. And he said so. And in addition to saying so he acknowledged his prejudice against gay couples adopting and, in order to maintain fairness in the judicial system he would recuse himself in any such case. Attorneys representing such adoptions should, therefore, notify him so the case could be assigned to another judge.
Of course, as we all know, Judge Nance, a Harvard Law School graduate, must be a bigot. So says the ACLU, something called the Fairness Campaign, and Lambda Legal — all advocates of LGBT rights — who, along with a University of Louisville Law professor, filed a formal complaint against Judge Nance.
“Judges, more than anyone else, have a responsibility to follow the law,” said the law professor, Sam Marcosson. “By making it clear that he could not or would not do that, Judge Nance demonstrated that he simply had no place on the bench,” he said, echoing his complaint: The judge could not be fair and impartial and rule in the best interest of children when he declares an explicit bias against LGB parents.
Maybe I missed that class in law school, but I thought that was what recusal was all about — a way for a judge who had a moral objection or prejudice against a party to allow another judge, presumably an impartial one, to hear and decide the case. Apparently, though, at least to the ACLU, Lambda Legal, and other gay rights organizations, if you don’t believe in their agenda you have no right to serve on the bench even if you make arrangements for another judge to hear the case.
In ruling against the judge, the Judicial Conduct Commission, calling the judge’s recusals “misconduct in office” wrote, “The Kentucky code of Judicial Conduct requires judges to fairly and impartially decide cases according to the law. Judge Nance’s refusal to hear and decide adoption cases involving homosexuals is violative of said canons.”
Thus, in a decision dated December 19, the commission reprimanded the judge, and had he not submitted his resignation earlier, the commission would have removed him from office.
The event is reminiscent of the case of Wyoming Judge Ruth Neely [The Saga of Judge Ruth Neely, The Wanderer, November 9, 2017, p. 5A]. You might recall that she ran into similar trouble with the state’s Commission on Judicial Conduct and Ethics because she said she could not, in good conscience, preside at same-sex weddings. The complaints against her were brought by an official of the state’s Democratic Party and other LGBT groups, and they came in spite of the fact that other judges in her district were willing to perform such weddings, and that in her role she was allowed, but not required to perform weddings — in fact, the law allowed her to decline to do so for any reason.
The Wyoming Supreme Court, noting that the issue had been addressed in at least five other states whose rulings were consistent with theirs, rejected the commission’s recommendation that she be removed from office but ordered her to either stop performing all weddings or to perform same-sex weddings.
Unlike Judge Nance, Judge Neely did not roll over and resign. She has appealed the decision to the U.S. Supreme Court, where her case is now pending.
But an even broader attack on people of faith took place last September in a Senate hearing on President Trump’s nomination of Notre Dame Law Professor Amy Coney Barrett to a seat on the Seventh Circuit Court of Appeals. Professor Barrett had the misfortune, as a leader in her profession, to write and lecture about judicial ethics and when judges have internal moral conflicts with the issues they are called upon to decide.
In a law review article she had discussed the issue of the death penalty and the reluctance of Catholic judges to impose it. Thus she argued that it would be permissive for a judge to recuse himself from a death penalty case (maybe I didn’t miss that class after all!).
Then, without mentioning the death penalty, Democratic Sen. Diane Feinstein asked about upholding Roe v. Wade, the case that made abortion legal. “When you read your speeches, the conclusion one draws is that the dogma lives loudly within you. And, that’s of concern when you come to big issues that large numbers of people have fought for, for years in this country,” Feinstein opined.
Not to be outdone, Illinois Democratic Sen. Dick Durbin, a Catholic, asked Ms. Barrett if she was an “orthodox Catholic.” Of course the conclusion one can draw is that, for some senators, holding traditional views on moral subjects may be a bar to your service on the federal judiciary.
As Noah Feldman of Bloomberg News put it: “The thrust of Feinstein’s questioning was that, as a believing Catholic, Barrett couldn’t be trusted to apply the Constitution and laws objectively should she be confirmed.”
Interestingly, Professor Barrett was finally confirmed for the seat on the circuit court, but the vote was interesting: 55 voting to confirm, all Republicans plus Kaine of Virginia and Manchin of West Virginia, the only Democrats voting for her; against her were the votes of 43 senators, all Democrats plus the independents — King of Maine and Sanders of Vermont.
While in this era of “resistance” to the Trump Administration, it may be hard to determine if the vote against Judge Barrett was anti-Catholic, it sure registered with Baltimore Archbishop William Lori, chairman of the USCCB committee on religious liberty who said the questioning was “deeply disappointing” and that the senators failed to consider Barrett’s qualifications and instead “challenged her fitness to serve due to her Catholic faith.”
Obviously millions of Americans hold views similar to the three judges presented here and, unfortunately for many, political correctness — unless something is done — will prevent them from serving in judicial roles in either state, local, or federal positions. Fortunately there is a chance that this situation might not prevail, at least on the federal level. Mr. Trump may not be everyone’s cup of tea, but he knows which side the judicial bread is buttered and has nominated judges accordingly, but with diminishing support in the Senate let’s hope he’s strong enough to counter the latest political convention.
He should. His election was, in part, a referendum on who should be picking our judges.
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