June 21, 2015

A series of events that has been described as a “troubling turn” has been found to have taken place at the U.S. Supreme Court regarding the justices’ looming decision on marriage – whether they will affirm the millennia old standard of one man and one woman or whether they will create a right to homosexual “marriage.”

The report is from the law firm of William J. Olson, P.C., the workplace of Olson, who served in several positions for the Reagan administration, and Herb Titus, a longtime constitutional law professor.

The organization has issued a series of reports on the issue of marriage, under funding from the United States Justice Foundation.

The circumstances concern efforts to have Ruth Ginsburg and Elena Kagan recused from the marriage case because they both have taken public advocacy positions for same-sex “marriage” by performing those ceremonies even while the case was pending before the justices.

WND reported just days earlier when a former member of the federal judiciary, Joe Miller, who, when he was appointed U.S. magistrate judge in Fairbanks, Alaska, was the youngest person then serving in that federal position in the nation, called their actions a violation of the code of ethics for judges.

Read the history of the attacks on marriage and the family, from the days of Karl Marx and Margaret Sanger to those now pushing for mandatory recognition of same-sex “marriage,” in “Takedown: From Communists to Progressives, How the Left has Sabotaged Family and Marriage.”

The report from Olson and Titus noted that the Foundation for Moral Law twice formally filed documents seeking the recusal of Kagan and Ginsburg.

“Importantly, Miller also reported that not only had the court not ruled on the foundation’s motion, but that the motion had not even been posted on the Supreme Court docket. While a delay in posting can occur for a number of reasons, none applied here. Did someone at the high court not want to acknowledge that such a motion had been filed?”

They continued, “Now we may have some indication that the U.S. Supreme Court uses Google Alerts, because shortly after the Miller article was published, on either June 17 or 18, 2015, the foundation’s recusal motion suddenly appeared on the docket of the U.S. Supreme Court. Under a date of May 21, 2015, the entry read: ‘Request for recusal received from amicus curiae Foundation for Moral Law.’”

But that, they said, raises even more questions.

“First, the missing motion. The foundation’s first motion to recuse consisting of eight pages was submitted on April 27, 2015 (and date and time stamped on April 27, 2015, at 11:47 a.m.) — a good three weeks before the Supreme Court claims that it was ‘received’ on May 21, 2015. The Foundation for Moral Law later filed a second motion to recuse consisting of four pages on May 21 (date and time stamped on May 21, 2015, at 11:28 a.m.). The second motion was filed after Justice Ginsburg performed another same-sex wedding, and was to the effect of: ‘there, you did it again.’ The second motion refers back to the first motion. Why is there only one entry on the court’s docket sheets? What happened to the original motion?”

Then, as lawyers are apt to do, they noticed the specific language used by the Supreme Court.

“The Foundation document is entitled a ‘Motion.’ Why is it entitled on the docket as a ‘Request’? Third, the action. According to the court rules, a ‘Motion’ is ‘filed’ with the court. Why is the action taken by the court described only as ‘received’ and not ‘filed’?”

“These points … suggest that the high court, for an inordinate time, has ignored the recusal motion. While the court has finally acknowledged that some recusal filing was made, it certainly gives no assurance that any ruling on the motion will be forthcoming before the court decides the same-sex marriage case,” the lawyers explained.

They quoted federal law, which requires judges to exit from a case where their impartiality, “may reasonably be questioned.”

“However, as this case is demonstrating, the Supreme Court appears to believe it is under no obligation to abide by that federal law and judicial ethical rule. First, while Justices Ginsburg and Kagan have an ethical duty to avoid commenting on cases, and a statutory duty to recuse when their impartiality ‘may reasonably be questioned,’ as a matter of practice, each justice is the sole judge of her own case. While a decision of a lower federal court judge may be appealed to a higher authority, each U.S. Supreme Court Justice has the final word on his own fitness to serve. These two justices should have addressed the question publicly prior to participating in oral argument … on April 28, 2015, but they did not. Since these two justices ignored problems caused by their conduct, the remainder of the court should have stepped in and addressed the issue for them, but the other seven justices have remained silent.”

The lawyers noted that the move to take Kagan and Ginsburg off the case also has involved the American Family Association, Vision America Action, National Organization for Marriage, the U.S. Justice Foundation, the Louisiana House of Representatives and Gov. Bobby Jindal.

The result will ultimately, they said, “will not only erode public confidence in the U.S. Supreme Court, but would call into question the constitutional legitimacy of its forthcoming same-sex marriage decision.”

Read the history of the attacks on marriage and the family, from the days of Karl Marx and Margaret Sanger to those now pushing for mandatory recognition of same-sex “marriage,” in “Takedown: From Communists to Progressives, How the Left has Sabotaged Family and Marriage.”

WND reported when Miller called it “troublesome” that Kagan and Ginsburg have made “supportive public statements and have even voluntarily officiated at homosexual marriages – despite knowing that the question of homosexual marriage would be presented before them for future decision.”

“There is a Code of Conduct under which federal judges – including U.S. Supreme Court Justices – are bound to comply. (Justice Kennedy stated on March 14, 2013, that he and the other justices of the Supreme Court consider the Code of Conduct to be ‘absolutely binding.’) Canon 3A(6) of that Code of Conduct requires that a judge ‘not make public comment on the merits of a matter pending or impending in any court,’” Miller wrote.

“Canon 2A of the same code provides that a judge ‘should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.’ Finally, a federal statute, 28 U.S.C. sec. 455(a), further mandates that a federal judge ‘disqualify himself in any proceeding in which his impartiality might reasonably be questioned,’” he wrote.

WND reported when Alabama Supreme Court Chief Justice Roy Moore said Ginsburg could be penalized for her public advocacy of “gay” rights as the court considers a case that could redefine marriage in federal law.

“It’s called impeachment,” he told WND.

As WND reported, Ginsburg has performed same-sex wedding ceremonies and made supportive public statements. Kagan also has performed same-sex weddings and promoted “gay” rights at Harvard’s law school while she was at its helm.

Ruth Ginsburg

The brief from the Foundation for Moral Law explained: “Four weeks after this court granted certiorari in these cases, Justice Ginsburg was asked whether parts of the country might not accept same-sex marriage being constitutionalized. She answered: ‘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.’”

Ginsburg’s interview was with Bloomberg News on Feb. 12.

The foundation’s motion said the “extrajudicial comments about a matter pending before the court violate Canon 3A(6) of the Code of Conduct for United States judges: ‘A judge should not make public comment on the merits of a matter pending or impending in any court.’”

The controversy resurfaced a few weeks ago, because even after being told of the appearance of a conflict of interest, Ginsburg again officiated at a same-sex wedding, as the New York Times reported.

The paper said that with “a sly look and special emphasis on the word ‘Constitution,’ Justice Ginsburg said that she was pronouncing the two men married by the powers vested in her by the Constitution of the United States.”

“No one was sure,” the paper said, “if she was emphasizing her own beliefs or giving a hint to the outcome of the case the Supreme Court is considering whether to decide if same-sex marriage in constitutional.”

Moore said the Constitution’s option for impeachment appears to apply, since Ginsburg’s actions could be perceived as flouting the concept of a neutral judiciary. He noted that besides the well-known “high crimes and misdemeanors” that would subject a federal official to impeachment, Article 3, Section 1 of the Constitution also provides that judges “shall hold their offices during good behavior.”

Moore told WND that according to an analysis by historian Raoul Berger at Harvard Law School in 1970, the Constitution clearly suggests an end to “good behavior” is accompanied by an end of their “offices.”

“His conclusion is there is an implied power to remove judges whose bad behaviors fall short of high crimes and misdemeanors,” he said. Since there are no “dead words” in the Constitution, “every word has a meaning.

“The remedy rests with Congress,” he told WND, although anyone could raise the question.

Col. John Eisdmoe, also of the Foundation for Moral Law, told WND earlier that the pro-”gay” bias exhibited by Ginsburg and Kagan ultimately will leave a cloud over any ruling.

“The decision will forever be open to question of whether it was an honest and fair decision of the court or was controlled by their personal viewpoints on the issue,” he said.

Eidsmoe is a lecturer at colleges and universities and a constitutional attorney with a successful litigation record in religious freedom cases. He holds five degrees in law, theology and political science, including two doctorates, and he’s written numerous books, including “Christianity and the Constitution.”

WND has reported a number of groups have urged Ginsburg and Kagan to recuse themselves from the marriage case.

Elena Kagan

The justices have refused and also have declined to respond to questions on the issue.

Joining in the call for Kagan and Ginsburg to be removed from the case were hundreds of members of the Rabbinical Alliance of America.

“We join many other[s] who are appalled and deeply ashamed” that Ginsburg and Kagan “have still not had the grace, or decency to adhere to the U.S. code which calls upon a justice to ‘Disqualify himself in any proceeding in which his impartiality might reasonably be questioned,’” their statement said.

“We call upon Chief Justice Roberts, President Obama and the House and Senate Judiciary committees to speak out and take the necessary steps to disqualify Kagan and Ginsburg from participating in these proceedings,” said the statement, which represented the 850 members of the organization.

See Ginsburg’s comments:

Miller noted that just months ago, Ginsburg said in an interview: “The change in people’s attitudes on that issue has been enormous. 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.”

She said it would not take a great deal to make the nation accepting of “gay marriage.”

“How Justice Ginsburg – whom the left describes as ‘brilliant’ – could think that such actions and past statements would not raise obvious questions of partiality in a case involving the U.S. Constitution and homosexual marriage is especially troubling,” Miller wrote.

“And yet she has aggressively continued her participation in Obergefell v. Hodges as reflected by her active engagement in the case’s oral argument just several weeks ago.”

He said: “The only answer for justices who blatantly violate their Code of Conduct, federal law, and their oaths of office is impeachment and removal. Regrettably, a Republican-controlled Congress, more concerned about rescuing Obamacare than resisting yet another activist attack on the Constitution, offers little hope. Unless and until members of Congress demonstrate real fidelity to the U.S. Constitution, no ruling class politicos in either party can be trusted, and none should be supported, by those who seek to restore liberty to our nation.”

 

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