Gov. Christie denies any hypocrisy in his nomination of a gay lawyer to the New Jersey Supreme Court, but he hasn't been very persuasive.
The nomination of Chatham Mayor Bruce Harris to the state's highest court was unexpected given Christie's opposition to legislation that would make gay marriage legal in New Jersey. Christie's motives became even murkier Monday when he announced that if Harris is confirmed by the state Senate, he would recuse himself from any cases involving gay marriage.
Christie explained that Harris, who has lived with a same-sex partner for more than 30 years, felt recusal was appropriate because he has supported gay marriage as a private citizen and an elected official. Harris' concern is understandable, but if the governor's idea of diversity goes beyond window dressing, he should have assured Harris that his recusal promise is unnecessary, and that his perspective is desired.
Conflicts of interest must be avoided, but that doesn't mean judges must mentally erase their personal experiences before deciding cases. Christie also nominated Korean-born Phillip Kwon to the court. Should he recuse himself from all cases involving Asians?
For years, Justice Thurgood Marshall recused himself from cases before the U.S. Supreme Court involving the NAACP - not because he was black, however, but because he had been an NAACP attorney. Eventually, Marshall informed his fellow justices that enough time had passed for him to hear NAACP cases.
Marshall also recused himself from some cases linked to his tenure as U.S. solicitor general. Current Justice Elena Kagan, a former solicitor general, may similarly recuse herself in some instances. But such recusals should be due to direct ties between the judges and the cases being heard. Blanket recusals such as what Harris promises, due to a judge's race or gender, aren't warranted.
Judges must follow the law, not bend it to fit their personal philosophies. But that doesn't mean judges have to be automatons prohibited from reflecting on their own life lessons in making decisions that impact real people.
It's not unusual for personal insight to help a judge make the best decision. Christie, a former U.S. attorney, should know that. He should have thanked Harris for offering to always recuse himself in gay-marriage cases, but told him it wasn't necessary.
Given Christie's opposition to gay marriage, his acceptance of Harris' recusal promise suggests the governor's nomination of a gay man to the state Supreme Court may not have been as enlightened as it appeared. There may be times when recusal would be proper, but Harris' agreement to stay out of any gay-marriage case seems excessive.
Marshall fought for civil rights, but that didn't keep him from hearing civil rights cases. If Christie believes Harris' perspective would be valuable to the court, he should advise him that Marshall's example on recusals is the one to follow.
