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.
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.
, 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.)
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.
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.
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.
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.
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?
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.
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.
We have different opinions about that.
Don’t pretend that your opinion is a fact.
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”
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.
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.
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.
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
“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.”
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.
“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.)
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 ?
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!
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.
I’m confused by many of the commenters.
The judge did the right thing in outlining her past, and has stated that she believes that she can still be impartial.
Turley points out that only the parties of the case can object.
The only one at any ethical risk is the AG defending the law. If the AG tanks the case… it would be on her. Not the judge or the plaintiff.
The AG should file a motion for the judge to recuse herself. Then it would be up to the judge to do so, or not.
But the judge is doing her job.
In a normal case, I would agree. But this judge knows perfectly well that the parties in this case are not truly adverse. IMHO, this puts an additional ethical burden on the judge, knowing that she cannot rely on the usual safeguard of adversity of the parties to trigger diligence against potential bias. At best, her disclosure might generate a little political heartburn for the AG, but that’s about it. The scenario in which one party challenges the law, the other party’s counsel won’t defend it, and the judge has a connection to one of the parties is not one to inspire confidence in the judicial process. But I suspect here, result is the primary goal here, confidence in the judicial process be damned.
“131 Federal Judges Broke the Law by Hearing Cases Where They Had a Financial Interest
“The judges failed to recuse themselves from 685 lawsuits from 2010 to 2018 involving firms in which they or their family held shares …”
https://www.wsj.com/articles/131-federal-judges-broke-the-law-by-hearing-cases-where-they-had-a-financial-interest-11632834421
Less than a year ago, “the Supreme Court, including Justice Barrett (despite calls for recusal), heard oral argument in Americans for Prosperity Foundation v. Bonta, which had at issue whether a California requirement that charities confidentially disclose the names and addresses of their major donors to the state is a violation of the First Amendment. Justice Barrett was herself a major beneficiary of Americans for Prosperity in 2020, when the organization spent $1 million to support her nomination to the Supreme Court.
“Recall that in Caperton v. Massey, a case from 2009, Justice Kennedy wrote for the Supreme Court: “We conclude that there is a serious risk of actual bias – based on objective and reasonable perceptions – when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent. The inquiry centers on the contribution’s relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election.”
“Today [April 26, 2021], despite the conflict and Caperton still standing, Barrett declined to disqualify herself and instead participated in arguments, where she sounded likely to rule in favor of the organization that spent so much to assure that she would achieve confirmation just a few months ago. …”
https://fixthecourt.com/2021/04/justice-barretts-non-recusal-courts-credibility-no-favors/
Barrett ultimately joined the majority in a 6-3 ruling striking down the CA law.
when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign
This opinion does not touch on SCOTUS. They do not run for election.
Some groups — like Americans for Prosperity — spend big bucks on the SCOTUS confirmation battle, despite it not being an elected position.
I agree with Prof. Turley regarding Nessel. Her failure to even consider appointing another counsel to defend a state law may seem cursory on her part, but when she speaks of her reasoning being the money, allocating resources to her legal responsibilities, it takes on the appearance of biased politicking, which the Dems can ill-afford in a mid-term election year.
This bill on judicial ethics, introduced in the Senate, should be approved by Congress:
https://www.congress.gov/bill/117th-congress/senate-bill/4010/text?r=1&s=1
Ever see a Democrat with Ethics?
Democrats don’t believe in the rule law!
Even if her decisions are legally correct and genuinely honest, nobody can believe it.
It is important to be seen and to be perceived to be impartial.
That is not possible with her history.
Just another example of leftist manipulating the justice system to advance an agenda they cant advance through representative democracy. Lifting the mask and saying they have no intention of following the law, is just saying the quite part out loud.
Gee, I wonder how this case will turn out. The suspense is killing me. I wonder if PP has drafted the order yet.
Why is it about woman and killing babies?
File a motion to disqualify the judge.
That can only be done by a parry to the suit. Since the parties are all happy to have a pro-PP judge on the bench, the motion to disqualify ain’t gonna happen.
The fix is in, double.
The US is so far away from “rule of law” it is quite incredible. Some day the whole legal “profession” will have to be rebuilt from the foundations.
Personally, I think Chief Judge of Michigan’s Court of Claims Elizabeth Gleicher is an ethics dunce.
I have to go off subject. When you think about the supposed “Don’t Say Gay” you should remember this video.
I am glad that you don’t question her ability to rule fairly. I do question it. There is no reason she should be given a presumption of good faith or impartiality given her background.
The Chatanooga Choo Choo is about to leave the station. All aboard!
This is the most embarrassing example of “The Emperor has No Clothes” that I can imagine, (aside from our dormant stance on the barely functioning sack of protoplasm occupying the White House at this time) . Why we don’t all just stand up and yell that this is a compromised judge who has placed personal agenda over justice and the rule of law; along with her partisan compatriots within the state judicial apparatus, is my biggest question. We, on the right, claim to know the truth yet we do not speak it out loud, just on comfortable blogs. This, also, speaks volumes about us. At least Turely is willing to point out this flagrant situation of judicial activism.
I’ll remind you once again that YOU don’t speak for most Americans, who support a woman’s right to choose.. Justice and the rule of law in this instance REQUIRE compliance with the holding in Roe v. Wade, which is the law of the land. You want to talk about “flagrant judicial activism”? How about the Federalist Society jurists poised to strike down the law of the land for 50 years based on their own personal agenda? Want to speak about Judges who should recuse? What about Thomas, whose wife was directly involved in Jan 6th, and who voted against the Jan 6th committee obtaining copies of records that would implicate her in the plot to overthrow our democracy?
Most women do support allowing abortions.
But the majority also support significant restrictions on abortions
A marist poll has 75% of new yorkers opposing abortion after 20 weeks
An sba poll has 64% of americans opposing abortion after 20 weeks.
Rowe BTW was modified by Casey replacing the trimester arrangement with a viability standard.
I would further note Rowe is NOT the law of the land. The constitution is.
Historically the courts have changed their minds about the meaning of the constitution all the time – or we would still have “separate but equal”/
Finally I would note that your arguments are self contradictory.
The state has MORE right to regulate your body with regard to abortion as it does with regardard to masks or lockdowns, or vaccination.
You can not have it both ways.
Either there is a right of people to control their own bodies and their health or their is not.
Either that right can be constrained by harm to others or it can not.
The actual rule of law requires that rights are protected consistently – otherwise we have lawlessness, chaos and ultimately anarchy.
I guess this Judge thinks the rules of Ethics do not apply to her. Well Duh!
If they don’t apply to the SCOTUS, then it’s a free for all….right?
There are no such ethical conflicts with SCOTUS.
Well gee-whiz Turley, it’s not like she is taking pictures with a candidate who is currently running for office. Or her husband working with lawyers to overthrow an election. Or her husband being paid to work for organizations that will be in front of her in court. And it’s a good bet you have sat down for a dinner with the Federalist Society or other right-wing causes and listened to a paid speaker from the SCOTUS.
Reality someday is going to really give you one hell of a headache.