Tuesday, November 01, 2005

Judge Removed in DeLay Case

The judge originally slated to preside over Tom DeLay's corruption trial has been removed. The DeLay defense team sought the move on the grounds that Judge Bob Perkins had contributed to Moveon.org and thus would be seen as biased. DeLay lawyer Dick DeGuerin argued thusly:
"The public perception of judge Perkins' activities shows him to be on opposite sides of the political fence than Tom DeLay." DeGuerin said no one contends Perkins did anything wrong, but "to protect the integrity" of the judicial system, he should not preside over a trial for someone to whom he is opposed politically."

I'm curious as to the fallout of this case. I should note I'm unclear on at least two very important facts. One, whether this can be cited as precedent (IE, is it a one-shot deal, or will this case actually influence how future similar cases play out). And two, can the prosecution also move to recuse a judge on the same grounds (IE, a judge who contributed to Republican organizations?). Will the rule set here play both ways? The answers to both, obviously, are critical in evaluating the case at hand.

I will say at the start that I think this ruling sets a dangerous precedent. Republicans have been relentless about portraying a politicized judiciary, and this ruling is a judicial seppuku that basically says judges can't be trusted to deal with their own political predispositions. All judges are political to some degree, some just flaunt it more than others. The presumption, though, is that judges can push aside their politics when hearing cases. If that presumption is damaged, there will be incalculable harm to the image of the judiciary as fair and impartial. Unfortunately, that very project has been on the agenda of the Republican Party for some time now, and as I support the impartiality of the courts I oppose Republican efforts to demonize judges for political points.

That's a broad question. The narrower question is whether this judge was the type to prioritize his politics over his judicial duties. And I have no idea whether that is true or not. I do think that DeLay should have won this motion if this judge reasonably could have been expected to subordinate law to politics. To prevent forum shopping (which is basically what DeLay wants to do here--see his related request for a venue change), that's a bar that should be set rather high. However, although I can't find the actual order itself, I've read nothing in DeLay's arguments that suggest a warrant for this claim. It's all about appearances and the presumption that someone who supports Democrats inherently will detest DeLay too much to judge fairly.

That, of course, raises the second of my unknown questions: does the rule being set here apply in reverse? The only way this decision can be justified is if the judge who replaces Perkins is scrupulously non-partisan. If it turns out the new judge is enmeshed in the Texas Republican machine, then that judge should be removed too. There is no reason to believe that Republicans enamored with DeLay's electoral victories will be anymore likely to be able to put aside party for the law, than a Democrat aghast over DeLay's ethical bankruptcy. However, if the outcome turns out to be replacing Perkins with a universally respected judge with unvarnished moderate credentials, then I'll say this all went for the best. But I'm not sure there's anyway to guarantee that will happen. And if it doesn't (and especially if the venue change goes through), then I think this motion will have radically subverted the chances of seeing justice done in DeLay's trial.

1 comment:

Anonymous said...

It seems to me that any judge who advocates ethical behavior must be eliminated from considering Mr. DeLay's case.

Afterall, if a judge is biased toward ethical behavior, he will convict DeLay.

Ain't That a legal problem! :-)