Brownback, Trump recusal theory flawed

Competent, confident lawyers, more interested in cases than causes, know better than to wish for judges who are biased in their favor.

Instead, those lawyers hope for judges with intelligence, judicial temperament – including freedom from bias and commitment to equal justice – and willingness to work hard.

Those lawyers know that they may need to argue one side of a legal or philosophical issue in one case and the opposite side in the next because their highest function is to represent the best interests of their clients, not to indulge personal ideologies. They want a chance to present their cases to a judge who will decide on the basis of fact and law, not on personal biases in either direction.

Lawyers attached to narrow causes and sharply partisan lawyers serving in legislative bodies, however, do want judges biased toward their causes and political philosophies, which they think will never change. Equal justice isn’t on their list of priorities while it is No. 1 on the list of any thinking citizen.

Every person is a unique package, with an origin story, a belief system and an array of life experiences that affect intelligence, sensitivity, emotional responses and perceptions. Some of them become judges, and, like the rest of us, they cannot jettison their experiences and backstory but they can work to understand and moderate their more negative habits of the heart and mind.

But many politicians, including those with legal training, apparently believe that judges are incapable of that effort, perhaps because they themselves are incapable. Take Donald Trump (please), who has been insisting, illogically, that the Indiana-born judge in a lawsuit against him, being “Mexican” by Trump’s reckoning, must recuse himself because of Trump’s own bias against Mexicans. Think about it.…

Or take Gov. Sam Brownback (please), who as a U.S. senator in 2006 put a hold on the nomination of Janet Neff to a federal judgeship unless she agreed to recuse herself from any case involving same-sex marriage. His reason: She attended the same-sex wedding of the daughter of her next-door neighbors of 26 years.

It was not only a petty demand but probably unprecedented and clearly unconstitutional: that she commit to a certain behavior on the bench in exchange for his vote. Brownback, a law school graduate, was forced by the outrage to back down, then, astonishingly, claimed that he did not realize he might be setting a precedent.

Under the Trump and Brownback recusal theory, there could be no trials whatsoever; courts would grind to a halt. The uniqueness and complexity of each person’s life – whether judges, plaintiffs, defendants or lawyers – ensures that any case offers multiple opportunities to contrive claims of bias: differences in religion, age, place of birth, education, hobbies, favorite foods, whatever. Recusal must be based on conscience, not contrivance.

This story was originally published June 14, 2016 at 12:04 AM with the headline "Brownback, Trump recusal theory flawed."