Judicial Recusal: If Ginsburg and Kagan Are Recused from Marriage Equality Case, Scalia and Thomas Need to, Too

Skeptics or logicians reading the title of this post may recognize an inherent logical fallacy, the tu quoque (literally, “you, too”). This is an informal fallacy which means that the logic is flawed, but that doesn’t mean the conclusion reached is flawed.

Many on the far right wing over the past several months have pointed to the fact that both Supreme Court Justices Ruth Bader Ginsburg and Elena Kagan have presided over same-sex marriage ceremonies. Therefore, the thinking goes, they have pre-judged any same-sex marriage case that would go before the Supreme Court and therefore they should recuse themselves. I wrote about this once before back in 2013. Since I wrote about it before, I’ve generally ignored follow-up WND posts on it.

But, I decided to knock out an easy one today and let you know that it’s still A Thing over at WND, such as this latest story by Bob Unruh quoting the vehemently anti-gay Brian Brown of the National Organization for (straight-only, two-people-only, God-fearing-only) Marriage (NOM) (who also has a WND column): “Calls for Ginsburg to Drop Out of Marriage Case Escalate.”

The issue of judicial recusal is a tricky one. I don’t understand all of the details, but I do know that it is often very much up to the jurist to decide their own conflict of interest and make that determination themselves. I also know that it has long been held that a jurist’s makeup (such as gender, race, sexual orientation, political affiliation) is not grounds for recusal.

Public statements specific to the case? Perhaps. I’m not sure. In which case Ginsburg – who stated this week that people need to get over it, same-sex marriage is going to happen (that’s me paraphrasing) – might be considered as someone who should recuse herself.

That said, if she does, then Clarence Thomas and Antonin Scalia also must recuse themselves. Interesting that I don’t see WND or anyone else on the right pointing this out.

Why do I say this? Because of the tu quote or, “what’s good for the goose is good for the gander.” While Kagan and Ginsburg have both made their general personal position on marriage equality fairly clear, so have Scalia and Thomas. Thomas has been a bit more cagey in his remarks, but as a strict textualist and very much a person seeking to limit the federal government, his opinions have pretty much always sided with restricting individual rights when those are rights not explicitly enumerated in the Constitution. And, he’s seen as one of the most conservative members of the Court and voted against the majority opinion in the decision to strike down anti-sodomy laws. As for Scalia, he has been very outspoken against same-sex marriage and made his opinions on the issue very clear. He has been the primary dissenter in any legalization or striking down of anti-legalization of pro-homosexual issues, including the anti-sodomy laws and DOMA. In addition to that, both Scalia and Thomas frequently associate with vehemently anti-gay groups.

Do I actually think any of these four will recuse themselves? No. But if you call for one side to do so, you must call for the other. But, WND and its ilk want to stack the deck and know that the ruling this year is likely to be a 5/4 decision, but if both Kagan and Ginsburg recuse themselves, then the Court will uphold marriage equality bans.

Surprisingly, at the moment, the top-rated of the 147 comments on the 18-hrs-old WND story is by “BobSF_94117” and he points this out: “Scalia goes around the country offering his opinion on SSM and, far worse, his legal opinion of it.” You have to scroll through many, many other comments (when ranked form “Best” on down) to find one expressing similar ideas.

Justice Ginsburg Officiates Same-Sex Wedding and World Net Daily Commenters are Outraged

To be honest, I’m surprised it took three days for World Net Daily to post this. I saw the announcements about it on August 30, but WND didn’t post about it until September 2. Perhaps because FOX “news” itself, which WND decided to link to for the story they entitled, “Ginsburg Officiates at Same-Sex Wedding,” didn’t post it until September 1.

The article’s main point is quite clear by the title. Supreme Court Justice Ruth Bader Ginsburg is one of the most liberal members of the US Supreme Court today. Such a story is, therefore, not surprising. Nor is it surprising the commenters by WND folks.

For example, we have “Amerizon Warrior” with 11 up-votes and 0 down-votes (I wish I could down-vote due to grammar): “and she has the NERVE to call conservatives activists…what a hypocrite! she should never have been appointed to the ussc…she is not loyal to this country”

“renojmc” with 15 up and 1 down: “A vile and disgusting person officiating a “wedding” between two vile and disgusting people. All of these fools are simply invoking God’s wrath on them.”

“mossback” with 5 up and 0 down votes wrote: “Why has that dried up old Crow not been put to pasture in a straight jacket? She is a perfect example for the need for term limits!”

“jtilii” with 5 up and 0 down: “What an old CROW!! To all those who celebrate this debauchery, can you just fly far, far away now and off to never-never land?”

But, it’s really just “Mikeyh0” with 5 up and 1 down-vote that I want to comment on, and really only their first sentence: “Gee, she seems so fair-minded and not driven by an agenda, doesn’t she?”

It was when I read this that I decided to put it up here on WND Watch. The reason is that it is such hypocrisy to say that Ginsburg is the one driven by an agenda. I direct you to Justice Antonin Scalia. Right Wing Watch has just a small sampling of probably the most outspoken Supreme Court Justice in recent memory. And one of the most conservative.

For example, April 18, 2013: “Even as Scalia and his colleagues consider a challenge to a key provision of that law [the Voting Rights Act], Scalia chose this forum [University of California Washington Center] to elaborate on a claim he first raised during oral arguments, when he called the law a “perpetuation of racial entitlement.” This week, he echoed that claim, calling the law an “embedded” form of “racial preferment.””

Or on October 25, 2010, when Scalia “said traditional Christians should have the courage to embrace their faith. … What is irrational is to reject a priori, with no investigation, the possibility of miracles in general and of Jesus Christ’s resurrection in particular – which is, of course, precisely what the worldly wise do.”

Or, just generically his anti-gay moments, such as defending employment and housing discrimination on the basis of sexual orientation, or comparing a ban on homosexuality to a ban on murder.

Ginsburg may be one of the more outspoken liberal Justices, but Scalia takes the cake in both being outspoken and a stereotypical grumpy old straight white man stuck in the mentality of the early 1800s when blacks knew their place and gays all hid in dark closets.