MONTGOMERY, Ala. — Two of the seven retired judges selected to hear Roy Moore's appeal of his ouster as chief justice have asked to be excused from the case, a day after the entire Supreme Court disqualified itself from the dispute over his Ten Commandments display.
The seven replacement judges had been selected in a random lottery Monday, and two asked to be excused, one citing past connections with the Court of the Judiciary, the ethics panel that ousted Moore. They will be replaced by alternates.
Moore was ousted Nov. 13 for refusing to obey a federal judge's order to remove his 5,300-pound Ten Commandments monument from the rotunda of the state judicial building.
The eight remaining state Supreme Court justices disqualified themselves Monday because of their earlier involvement in the dispute. In August, they had ordered the monument moved to a storage room.
To pick a replacement court for Moore's appeal, the names of all of the state's retired circuit, district and appeals court judges — except those physically unable to serve — were placed in a box and seven names were drawn by Supreme Court Clerk Bob Esdale.
Two of those drawn — retired civil appeals judge William E. Robertson and retired Franklin County Circuit Judge John D. Jolly — told court officials they would not be able to serve.
Robertson is a former presiding judge of the Court of the Judiciary and sat in on the Moore trial as an observer. Jolly did not give a reason for declining to serve, Esdale said.
Moore's defense team also expressed objections to two others of the seven replacement judges.
Moore's attorney, Phillip Jauregui, questioned letting retired Supreme Court Justice Janie Shores serve on the replacement court because Moore terminated her position as a paid retired member of the Supreme Court.
Jauregui also said another of the judges, retired Mobile County Circuit Judge Braxton Kittrell, was a member of the Judicial Inquiry Commission when it investigated Moore in a separate case when Moore was a circuit judge.
The defense did not formally ask those judges to step down, however. If Moore does make such a request, it would be up to the replacement court to decide whether to force them to step down.
Only six justices are required to hear a case, but seven were chosen in order to avoid a tie.
Acting Chief Justice Gorman Houston called the drawing of the judges for the special court "absolutely historic" — and "a tragedy." He said the only similar case occurred during an unsuccessful attempt by the Legislature to impeach several Supreme Court justices in 1829.
Moore, who is known as "the Ten Commandments judge," had the granite monument moved into the judicial building on July 31, 2001, saying the Ten Commandments represent the moral foundation of American law. A federal judge found the monument to be an unconstitutional promotion of religion by government following a trial in 2002.