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.
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!
Liberal, left wing values at work.
Gina Thomas is not a judge.
Do I really have to say that?
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.
More to the point, what evidence is there Justice Thomas publicly endorsed his wife’s position? You offer a false analogy.
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..
I am assuming you believe Prof Amy Wax,s statement about Indian Americans on Tucker Carlson are acceptable. Like to get your comments. Thanks.
Has she presided over any cases involving Native Americans? If so, I would say she should have recused herself.
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.
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!
After reading the headline, why am I not surprised to view an ugly dried up old prune?
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”.
Because you’re looking in a mirror and are used to seeing that?
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” —
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.