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Tuesday, December 19, 2006

This time of year, however, it's usually the free booze, Ecstasy, and mistletoe.

In the good news department, today's NYT reports that Senator Brownback is lifting his block on Janet Neff, a nominee for the federal bench. I don't know Neff or whether she should be confirmed on the merits, but I'm glad that Brownback's reason for opposing her has been reconsidered. Earlier, Brownback explained his opposition to Neff for this asinine reason: she had once attended a same sex commitment ceremony. In case the obtuseness of this position wasn't facially obvious, the NYT brought in my former con law professor to give this detailed response:

Charles Fried, a Harvard Law School professor and leading conservative scholar, said Mr. Brownback’s actions were improper. “First of all, people go to parties for all sorts of reasons,” Professor Fried said, and how one would rule on a case should not be inferred from that private activity.

When this reason was ventilated to the public, Brownback backpedaled from that, floating a "compromise" that he would let the nomination go forward on the condition that Neff recuse herself from cases involving same-sex marriage issues. Fried was having none of that either:

Further, he said, “It would be inappropriate for the judge to recuse herself from any such case because it is a judge’s duty to sit on cases” unless there is a clear conflict of interest. There would be a genuine conflict of interest, he said, if the judge had a financial interest in a case’s result or had been associated with one of the parties in the case. “For her to agree to any such restriction in this case would be wrong,” said Professor Fried, who has been both a judge and the solicitor general of the United States.

Glad that's settled.

Posted by Dan Markel on December 19, 2006 at 01:29 PM in Law and Politics | Permalink

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Senator Sam Brownback (R-KS) has lifted a hold on the nomination of Judge Janet Neff to a federal District Court. Senator Brownback had objected to Judge Neff's attendance at a committment ceremony for a longtime friend of Neff's and her... [Read More]

Tracked on Dec 21, 2006 11:16:29 AM

Comments

This is the kind of thing that makes one long for philosopher-kings. If he were from a little farther north (Nebraska), I'd say he was channeling Roman Hruska.

My wife and I once hosted a campaign event in Ann Arbor for Ernestine Bradley (Bill's wife - and quite a scholar in her own right - and I would have voted for her, were she qualified to run for President, in a heart beat.) And, as a favor to a friend in Indiana, I attended a reception for Richard Lugar. I am sure that would fry some politicos' circuits.

A friend's daughter worked for a while several years ago as a director in the President's Council on Physical Fitness. She told me that even for jobs like that, the fact that I had hosted Ernestine Bradley meant that "I could never get past Karl Rove." Not that I ever wanted to.

Posted by: Jeff Lipshaw | Dec 19, 2006 2:02:15 PM

For the record, Prof. Fried is quite wrong when he says that "it is a judge’s duty to sit on cases unless there is a clear conflict of interest." The 1978 amendments to 28 USC 455 quite clearly abolished the so-called "duty to sit" for federal judges who, in fact, are required to disqualify themselves whenever the is a reasonable question as to their impartiality -- a much lower standard that "clear conflict of interest." the "no duty to sit" rule is even more clear in the case of district court judges, who can be easily replaced in any particular case.

Brownback's proposed compromise was absurd and offensive, of course. You could just as easily argue for the disqualification (in gay marriage cases) of a judge who has never been to a similar committment ceremony. But we still ought to get the standard right.

Posted by: steve lubet | Dec 19, 2006 2:37:03 PM

She's got a wonderful name for a judge.

Posted by: tough | Dec 19, 2006 9:48:19 PM

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