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.

No Good Choice for a WND-Style Conservative in This Story

I found this story interesting only because I wondered which way über-conservatives from World Net Daily would react; apparently, they didn’t either because very few people commented or even rated the story. It’s a story from Foreign Policy that WND headlined, “21 Nations Line Up Behind U.N. Effort to Restrain NSA.”

Why did I think this would be a hard choice? Well, during G.W. Bush, of course spying was good because it helped get those dirty muzzies. But under President Obama, spying is horrible because Obama is trying to take our gunz and force his muslim terrorist beliefs up our butts and pack it in with gay polls. On the other hand, the UN represents globalism, which also is super-duper bad because it erodes our rights and ‘Mer’ca’s sovereignty.

The story, posted about a week.5 ago, has only garnered 4 ratings (3.75/5 stars) and 14 comments. From what I can tell, the majority of the comments seem to bypass this cognitive dissonance; where it’s addressed, it’s more of a tu quoque argument of, “Oh yeah, well, other people spy on their people, the UN should go after them!” For example, the highest-rated comment, with 6 up-votes, is by “tigertooth”: “Almost every nation uses data transmitted/received information. But our ‘government’ uses this data on the taxpayers, honest people who work. And we support the ‘government’ leaders (traitors) with pay and benefits. Why don’t they gather information from the hotbeds of hate? Muslim temples of jihad?”

Another example is by “Manuel Manjarrez,” who wrote: “if they call out the usa call out Isreal France China and Russia who do the same thing hypocrytes though at least they spy on everyone and not just american conservative constitutionalists but instead of going after foreign spies and muzzie terrorists they go after americans with different beliefs from the white house who knows it might change but the next president if he or she is conservative should have a massive purge in the bureaucracy because of sympathiezers of leftism but I doubt it if it is a bush or christie who wins”