Last week, a Kentucky judge announced that he would not preside over another adoption case involving a same sex couple:
Nance cited a judicial ethics rule that says a judge must disqualify himself when he has a personal bias or prejudice.
In an order issued Thursday, he said “as a matter of conscience” he believes that “under no circumstance” would “the best interest of the child be promoted by the adoption by a practicing homosexual.” Kentucky state law allows gay couples to adopt, and the U.S. Supreme Court ruled in 2015 that all states must permit same-sex marriage.
So is this a problem or not?
While it’s understandable that the first reaction of many progressives would be “Screw that guy! Get him off the bench!”, mine was “Well it’s about time a judge openly admitted he’s not qualified to rule on same sex couples! Bravo!”
Don’t get me wrong, I don’t approve of the bigotry but bigotry was never really the problem; it was and will always be people acting on their bigotry that creates the systemic discrimination so many minorities, whether racial, religious or otherwise, experience. Everyone dislikes someone for one reason or another, the important thing is that we recognize that flaw in ourselves and not act on it. For a sitting judge to come out and say, “I can’t be neutral the way I must be in this particular instance” is a big deal. I would much prefer this kind of honesty than forcing a judge to keep his issues to himself and letting him impose his bigotry on the legal system.
For an example of how such bigotry can tilt the system against a group of people, look no further than the black community:
In a fair system, black and white defendants who score the same number of points under this formula would spend the same time beyond bars. But The Herald-Tribune found that judges disregard the guidelines, sentencing black defendants to longer prison terms in 60 percent of felony cases, 68 percent of serious, first-degree crimes and 45 percent of burglaries. In third-degree felony cases — the least serious and broadest class of felonies — white Florida judges sentenced black defendants to 20 percent more prison time than white defendants.
That’s what it looks like when a judge allows his prejudice, explicit or otherwise, to guide his rulings. And it’s going to get worse under white supremacist Jeff Sessions but that’s a whole different subject.
We can agree that we want people to acknowledge they have a problem instead of hiding it or denying it exists. But here’s the downside: If we start letting judges opt out of cases based on whatever personal biases they have, we open up the Kim Davis can of worms. If you’ll recall, Davis was the “hero” (also from Kentucky) that refused to issue marriage licenses to same sex couples.
There is a substantial difference, however. In adoption cases, like divorce and child custody fights, the law is only a guideline; there are no hard rules. In the case of Nance, his personal judgement is actually necessary to the process. He’s a judge; he literally judges and that can’t be done by a robot or we wouldn’t need judges in the first place. Government employees like Davis are not required to use their personal judgement to do their jobs. When Davis imposed her opinion on the process, she was adding something that had no business being there.
On a related note, it’s important to keep in mind that a public servant like a judge has the luxury of recusing himself. Others, like the police, cannot. In those instances, explicit racism needs to be ruthlessly expelled and implicit racism constantly trained against. All too often, it’s a matter of life and death, especially for black men. Accepting the reality of prejudice is one thing. Allowing it to cause harm is quite another.
But aside from the immediacy of police work, do we pressure Nance to resign, knowing that it will create a chill, forcing some to hide their bigotry and continue to unequally apply the law? Or do we encourage them to recognize their shortcomings as normal and allow them to avoid imposing those shortcomings on others? The first step is always to admit there’s a problem and giving people the room to admit it without savagely attacking them will give them a way to start addressing it. The question then becomes how can we do this without allowing it to spread and split the justice system into fragments? I don’t have an answer to that and someone smarter than me will have to think of one if we’re ever to have a system of justice that’s fair for everyone.
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I’m a stay at home dad, father to a special needs son and a special daughter, a donor baby daddy, a militantly pragmatic liberal, the president of the PTA, a hardcore geek and nerd and I’m going to change the world. Or at least my corner of it.