Michigan Judge Declares She Will Preside Over Planned Parenthood Case Despite Her Prior Representation and Donations

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When I was clerking in Louisiana after graduating from law school, there was story of a rather notorious local judge asking counsel in a criminal case if he was ready to present the case of the defendant. He then asked the prosecutors “and are we ready to present our case?”

The story came to mind recently with a controversy in Michigan where the Chief Judge of Michigan’s Court of Claims Elizabeth Gleicher said that she will preside over a challenge to an abortion law brought by Planned Parenthood despite her previously representing the group and her annual contributions to the group.

Gleicher was appointed by Gov. Jennifer Granholm (D-Mich) in 2007 after a long legal career as private counsel. She was randomly selected for the challenge brought by Planned Parenthood of Michigan to preemptively block enforcement of the state’s ban on abortions that was passed in 1931. That law has been treated as dormant given the 1973 decision in Roe v. Wade. However, with the Supreme Court considering a challenge to Roe and its progeny, the group wants to ensure that the 1931 law cannot come roaring back to life.

According to The Detroit News, Gleicher issued a statement that

“Judge Gleicher asked me to notify all counsel of record that she makes yearly contributions to Planned Parenthood of Michigan . . . and she represented Planned Parenthood as a volunteer attorney for the ACLU in 1996-1997. While Judge Gleicher does not believe this warrants her recusal, and is certain that she can sit on this case with requisite impartiality and objectivity, she believes that this letter of disclosure is appropriate.”

To her credit, Judge Gleicher was right to issue the statement and let the parties know of the possible conflict. It is a difficult issue. Gleicher represented the group decades ago. A reasonable jurist could question whether such a long passage of time should still disqualify her from a case.

My concern is the combination of the past representation and the annual contributions to the group. That does strike me as, at a minimum, of meeting the standard of an appearance of a conflict of interest.

Under Rule 2.003, the grounds for disqualification include, but are not limited to, the following:

“(a) The judge is biased or prejudiced for or against a party or attorney.

(b) The judge, based on objective and reasonable perceptions, has either (i) a serious risk of actual bias impacting the due process rights of a party as enunciated in Caperton v Massey, [556 US 868]; 129 S Ct 2252; 173 L Ed 2d 1208 (2009), or (ii) has failed to adhere to the appearance of impropriety standard set forth in Canon 2 of the Michigan Code of Judicial Conduct.

(e) The judge was a partner of a party, attorney for a party, or a member of a law firm representing a party within the preceding two years…”

However, there is an interesting wrinkle. Under Rule 2.003(B), disqualification motions can only be filed by parties. The problem is that this is an engineered appeal with pro-choice parties on both sides. Planned Parenthood of Michigan already said it will not challenge Gleicher’s assignment and its medical officer (who is also a party) is not expected to do so.

On the other side is Attorney General Dana Nessel (D-Mich.), an ardent pro-choice politician who is tasked with defending the law. She has already said that she does not want to defend the law despite her statutory duty to do so.

Nessel (who has been previously criticized on this blog for her highly politicized approach to her office) has refused to take any steps to guarantee that the law is defended to allow both sides to be equally presented before the Court. She declared:

“I don’t want to use the resources of my offices and I don’t think I should be made to use the resources of my office to enforce a law that I know will result in women dying in this state,. I didn’t become attorney general so I could head an office that put women in a position in which some of them would likely die.”

That means that, not only will no party challenge Judge Gleicher, but there is currently no party willing to zealously defend the law.

Nessel has an obligation to at least appoint outside counsel to defend the law. The question is whether Judge Gleicher has a duty to recuse herself. Judges are subject to the Canons of Judicial Ethics.

Canon 2 of the Judicial Code of Conduct instructs judges to avoid even the appearance of conflicts or bias. “An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge’s … impartiality as a judge is impaired.”

Canon 3 states that “a judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.” That includes cases where “the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.”

Judge Gleicher has long been associated with Planned Parenthood and pro-choice advocacy. She discussed the importance of that litigation to her career in an interview at Wayne State University:

I actually do not question Judge Gleicher’s belief that she can rule fairly in the case. This is a presumptively unconstitutional law and there are threshold procedural issues on the basis for a challenge.

However, Judge Gleicher should see the obvious appearance of a conflict given her contributions and history. She should recuse herself in my view.

Notably, there has not been a hue and cry for disqualification by the experts clamoring for recusal, resignation, or even impeachment of Justice Clarence Thomas due to his wife’s political advocacy. That, however, was based on the fact that his wife engaged in protected speech and sent messages that were already in the possession of Congress. While I saw the good-faith arguments for recusal in a January matter, I did not see the basis for the sweeping recusals demanded by legal experts. Most of those experts, however, are now silent with regard to Judge Gleicher.

Even if Gleicher will not recuse herself, Nessel needs to show a modicum of principle and appoint someone who will defend this law and independently decide whether to file a motion for disqualification.

66 thoughts on “Michigan Judge Declares She Will Preside Over Planned Parenthood Case Despite Her Prior Representation and Donations”

  1. Jonathan: At least Judge Gleicher has done what Clarence Thomas has refused to do. She has issued a statement explaining why she thinks she can be impartial and objective in the abortion case brought by Planned Parenthood. You can’t say that about Clarence Thomas. He refused to recuse himself in the Jan. case involving Trump’s claim of “executive privilege” over WH docs related to Jan. 6. and did not even offer an explanatory statement. At the time that case was being decided his wife was deeply involved in efforts to overturn the 2020 election–meeting with Trump, Mark Meadows and others to work out a strategy to negate the electoral vote. Certainly Clarence knew of his wife’s political activities. They are close political allies. There are and will be other cases involving the Jan. 6 insurrection. If Justice Thomas refuses to recuse himself in these cases it will show he is not a fair and impartial jurist but a political actor with an agenda. No wonder the public accords the Supreme Court with such low marks these days because of the court’s majority right-wing agenda.

    Strangely, you think Judge Gleicher should recuse herself because she has a “personal bias or prejudice” involving Planned Parenthood but you refuse to apply the same stand to Clarence Thomas because, as you claims, Ginni Thomas was “engaged in protected speech and sent messages that were already in the possession of Congress”. Please explain how that is relevant to the issue of whether her husband should recuse? Clarence’s wife was was engaged in more than just “protected speech”. She was actively engaged in a plot to violate the law. In 29 messages she told Mark Meadows and anyone else in the WH who would listen how that plot should be carried out. She wanted the electoral college vote stopped so key states could appoint their own slate of pro-Trump electors. That’s against the law!. If, as you urge, Thomas refuses to recuse in cases in which his wife played a key role what does that say about the fair and impartial administration of justice at the Supreme Court? It makes a mockery of it!

    1. Your comment makes a fundamental error. The Michigan case involves a jurist who personally takes certain actions. Thomas involves a person whose spouse takes certain actions. Big, Big difference.

    2. Um, why would Thomas have to issue any statement? Since when is the Husband responsible for the “sins” of the wife? That’s awful chauvinistic of you..

    1. Has she presided over any cases involving Native Americans? If so, I would say she should have recused herself.

      1. She’s a law professor, not a judge. And she was talking about Americans of east India descent, not members of American Indian tribes, though it would be no surprise if she’s biased against the latter as well.

  2. Planned Parent/hood (i.e. granny, baby) for social, redistributive, clinical, and fair weather causes under the nominally “secular” Pro-Choice “ethical” religion. That said, there is no mystery in sex and conception, a woman, and man, have four choices, self-defense through reconciliation, and still six weeks from conception for a wicked solution to a purportedly hard problem: keep women appointed, available, and taxable, approved by feminists and masculinists alike. The Pro-Choice religion was established through diversity [dogma] (i.e. color judgment, class-based bigotry), including: racism, sexism, ageism, and socially rationalized with perceptions of emanations from penumbras (i.e. Twilight faith) to scalp the second named party, “our Posterity”, from The Constitution, to deny her human and civil rights.

    A human life is viable from her first to last heart beat, from the emergence of a nervous system to our last coherent thought. From the final solution to the wicked solution, think of baby, then granny!

  3. After reading the headline, why am I not surprised to view an ugly dried up old prune?

    1. Fertility envy? A balanced life for for a woman and a man, a couple, guided by human dignity and agency, with a forward-looking outlook to “our Posterity”.

  4. OT

    Dr Offit comes out swinging against Biden’s CDC.

    Vinay Prasad, MD MPH 🎙️📷
    @VPrasadMDMPH
    What makes Paul Offit’s NEJM editorial so damning is knowing that White House has tampered w FDA to get boosters for all; leading to mass mandates (college boys) even those just had covid, a disastrous public health decision & abuse of executive power

    Covid-19 Boosters — Where from Here?
    Paul A. Offit, M.D.
    https://www.nejm.org/doi/full/10.1056/NEJMe2203329

    People are now confused about what it means to be fully vaccinated. It is easy to understand how this could happen. Arguably, the most disappointing error surrounding the use of Covid-19 vaccines was the labeling of mild illnesses or asymptomatic infections after vaccination as “breakthroughs.” As is true for all mucosal vaccines, the goal is to protect against serious illness — to keep people out of the hospital, intensive care unit, and morgue. The term “breakthrough,” which implies failure, created unrealistic expectations and led to the adoption of a zero-tolerance strategy for this virus. If we are to move from pandemic to endemic, at some point we are going to have to accept that vaccination or natural infection or a combination of the two will not offer long-term protection against mild illness.

    In addition, because boosters are not risk-free, we need to clarify which groups most benefit. For example, boys and men between 16 and 29 years of age are at increased risk for myocarditis caused by mRNA vaccines.10 And all age groups are at risk for the theoretical problem of an “original antigenic sin” —

    1. Non-sterilizing “vaccines”, medical experiments, with progressive viability in time and variants, a durable viral vector (i.e. mRNA), excess adverse events, public transmission, and unknown long-term effects, mandated for distribution by choice (i.e. voluntary), Choice (e.g. deference to authority, empathetic appeal), and force to the general population. Deja vu.

  5. More Turley BS. The Judge is in the right: her representation of Planned Parenthood was YEARS ago, and she disclosed it, along with her contributions. And, despite the ranting and raving by the Evangelicals, most of the services provided by Planned Parenthood do NOT involve abortion, but rather, include things like annual well woman exams including a pelvic exam, Pap tests and breast examination, screening for high blood pressure, infectious diseases and other services to women, like contraceptive counseling, referrals for specialized care such as breast biopsies, internal medicine for diabetes, hypertension and general health problems, etc.. In many states, the majority of abortions are provided by private clinics, not Planned Parenthood, which is a frequent target of those who oppose a woman’s right to choose.

    1. , most of the services provided by Planned Parenthood do NOT involve abortion,
      The income generated by abortion is the leading source of service revenue. (not sure if the selling of baby parts is included in that total, or separate line item.)

    2. Natacha, Planned Parent Hood is doing such a good job that over 70% of babies born to black mothers are born out of wedlock. It leaves us to wonder about what percentage of babies conceived out of wedlock are actually born. So much for your family planning.

      Beautiful baby living on love
      The Sand man says maybe he’ll take you above
      Up were the gulls fly on ribbons and bows
      Where babies float by just counting their toes
      One two three four five
      One two three four five

      Or not.

      1. Ti T,

        If you bothered to read the research, you’d know that regardless of a woman’s marital status, well over half of all conceptions die of natural causes prior to birth, far more than die from elective abortions.

        1. Anonymous, you suggested that I should bother to read the research so I did. You said well over half of all conceptions die of natural causes. 62% were live births. 22% were abortions . 16% were miscarriages or still births. https://www.cdc.gov/nchs/pressroom/99facts/pregrate.htm. See paragraph five. Let me reiterate. Just because it somehow got planted in your head it does not make it true. You should weigh your arguments to make sure that they will not make you look uneducated and or biased.

          1. Ti T, apparently you don’t understand the difference between conceptions (which is what my statement was about: “well over half of all conceptions die of natural causes prior to birth”) and pregnancies (“62 percent of pregnancies ended in a live birth…”).

            The CDC data involve only “recognized pregnancies,” which you’d know if you’d bothered to click on any of the linked data. Pregnancies are only recognized after implantation NOT at conception. So the percentages given on your page exclude the large fraction of the blastocysts that are conceived but die prior to implantation.

            For example, the following article estimates preimplantation loss at 40-50%:
            Wilcox, A. J., et al. “Preimplantation loss of fertilized human ova: estimating the unobservable.” Human reproduction (Oxford, England) 35.4 (2020): 743-750.

            1. Anonymous, so when a women conceives she is not pregnant? Does she magically become pregnant in one day or one month? You are saying that she can conceive but not be pregnant. If she is indeed pregnant once she conceives than the 62% of pregnancies resulting in live births still stands. How is one not the other?

              1. Again, Ti T: your own data refers to “recognized pregnancies,” which only occurs after implantation. In many cases, conception occurs, the blastocyst quickly dies, implantation never occurs, and there is no recognized pregnancy.

                No doubt you also believe that someone is pregnant with all of the IVF embryos that were conceived and are sitting in frozen embryo banks.

        2. well over half of all conceptions die of natural causes prior to birth

          This always shows up on a thread that mentions abortion. It has nothing at all to do with abortion.

            1. Anonymous, just so you understand further. verb: conceive; 3rd person present: conceives; past tense: conceived; past participle: conceived; gerund or present participle: conceiving
              1.
              become pregnant with (a child).
              “she was conceived when her father was 49”

              1. Ti T,

                In other words, you’ll ignore the fact that the CDC’s data is only for “recognized pregnancies,” not for conceptions, and you have no interest in any scientific research. I’m not surprised.

            2. How many conceptions get aborted?

              This is the same stupid pedantry you always hide behind when you are way outside your knowledge, or posting what you are given.

              Abortion
              1)Also called voluntary abortion. the removal of an embryo or fetus from the uterus in order to end a pregnancy.

              Conflating abortion and conception, must allow you some illusion of something that satisfies you.

              Playing your stupid word games, only makes sense in your own head. But everybody else understands the debate.

        3. Anonymous, 50 percent of ovums may die before they are fertilized but you conflated the release of an ovum with conception. Conception occurs when the egg is fertilized by a sperm. Once this fertilization occurs the pregnancy has begun. The end result is that once conception occurs 62% of said conceptions will result in a live birth. I understand it’s your story and regardless of the science your sticking to it. Ninth grade biology.

          1. It has been a while since I brought attention to published scientific data re: trolls and Dark Triad personality traits. When you engage them, you are rewarding them.

            Machiavellianism – manipulative
            Psychopathy – antisocial behavior
            Narcissism – inflated and distorted sense of self worth

            Individuals with dark triad personality traits, including narcissism, Machiavellianism, and psychopathy, combined with feeling schadenfreude, taking pleasure from the misfortune of others, are more likely to indulge in internet trolling.

            Brubaker, P. J., Montez, D. and Church, S. H. (2021) ‘The Power of Schadenfreude: Predicting Behaviors and Perceptions of Trolling Among Reddit Users’, Social Media + Society. doi: 10.1177/20563051211021382

          2. “Anonymous, 50 percent of ovums may die before they are fertilized but you conflated the release of an ovum with conception.”

            No, Ti T, I didn’t conflate those.

            I very clearly referred to the huge fraction of fertilized eggs that die prior to implantation: “the percentages given on your page exclude the large fraction of the blastocysts that are conceived but die prior to implantation” (perhaps you’re not familiar with the term “blastocyst”?). The research I referred you to was very clearly about “Preimplantation loss of fertilized human ova.”

        4. So ?

          Most if not all do so because reproduction is an imperfect process.

          We have watched a virus mutate over and over – probably 99% of those mutations fail, they never replicate even once.

          That is how nature works – most failure dies before birth.
          This has nothing to do with choice.

          a few centuries ago most bablies born alive did not make it to adulthood.
          That did not make it moral to kill children.

          1. “a few centuries ago most bablies born alive did not make it to adulthood.
            That did not make it moral to kill children.”

            ATS is soft in the head. He can’t see how his analogies, if followed, eventually bite him in the brain. (He has anatomical problems.)

    3. Lets say this was a law suit between two private parties – and the judge had been legal counsel for one, and continued a financial relationship right up to the present.

      If you were the other party would you bet your case that the judge can be impartial ?

    4. No one has the right to MURDER in cold blood, an innocent, defenseless, precious baby. EVER! If you don’t want a baby, DON’T GET KNOCKED UP!

  6. Abortionists abort and abortionists adjudicate abortionists?
    ______________________________________________

    “That dudn’t make any sense.”

    – George W. Bush
    ______________

    Seems like insider trading; seems like corruption.

    There are ~80 million illegal aliens in the U.S. according to the Naturalization Acts of 1790, 1795,1798 and 1802.

    The definition of the word woman is the “mechanism for the accomplishment of the self-replication of the species,” without which there is no species, in this case, Americans.

    The actual American fertility rate is ~1.6.

    Abortion is actual American homicide.

    Abortion is killing America.

    What kind of country has no borders and no babies?

    What kind of country kills itself?
    _________________________

    “[We gave you] a [restricted-vote] republic, if you can keep it.”

    – Ben Franklin
    ___________

    You couldn’t.

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