A New Prop 8 Debate: On Judge Walker and Recusal

Since Judge Vaughn Walker’s ruling last week, all has been mostly quiet on the Proposition 8 front. The parties have made their motions for and against stays; the defendants have lodged their notice of appeal.

But in the last few days, a new issue has cropped up in the blogosphere over whether Judge Walker, who is reportedly gay (click here for the SF Chronicle story on this from February), should have recused himself given the subject matter: gay marriage.

Shortly after the decision, Tom Wildman, the president of the American Family Association, put out this statement, which reads, in part:

It’s . . .extremely problematic that Judge Walker is a practicing homosexual himself. He should have recused himself from this case, because his judgment is clearly compromised by his own sexual proclivity.

. . .

His situation is no different than a judge who owns a porn studio being asked to rule on an anti-pornography statute. He’d have to recuse himself on conflict of interest grounds, and Judge Walker should have done that.

On Wednesday, John Eastman, the former dean of the law school at Chapman University, chimed in in this San Francisco Chronicle editorial. Wrote Eastman:

[T]he mere fact that Judge Walker may be homosexual would not necessarily have required recusal. . . But the fact that he “attends bar functions with a companion, a physician,” and may therefore be in a stable homosexual relationship of the kind that could lead to marriage, is an entirely different matter.

. . .

If Judge Walker is indeed in a long-term, same-sex relationship, he certainly has an “interest that could be affected substantially by the outcome of the proceeding” - he and his partner are now permitted to marry! - and that, according to Judge Walker’s own finding, has financial benefits as well.

. . .

Judge Walker’s failure to disqualify himself or at least to disclose his potentially disqualifying relationship to the parties requires that the opinion in the case be vacated and a new trial conducted before a different judge.

Emily Bazelon feels differently. Writing at Slate on Wednesday, she called the calls for recusal “ridiculous.” To support her argument, Bazelon mostly hands the microphone off to Sherrilyn Ifill, who penned this post on The Root on Tuesday.

Wrote Ifill:

Judge Walker’s sexual orientation — whether gay or straight — is not an appropriate basis for a recusal motion. In fact, the suggestion that Judge Walker’s sexual orientation is evidence of bias is the kind of argument that was firmly discredited in a series of cases challenging the impartiality of black judges to decide civil rights cases.

. . .

In the late 1970s and early 1980s — as a bumper crop of minority federal district judges appointed by President Jimmy Carter presided over employment-discrimination cases brought under Title VII of the Civil Rights Act of 1964 — recusal motions were filed by defendants seeking to remove black judges from hearing these cases. Black judges pushed back firmly against attempts to question their impartiality and framed what has become the universally accepted understanding among the bench and bar: that judicial bias cannot be assumed based on the racial, gender or other status of the judge.

. . .

Arguments that Judge Walker’s sexual orientation made him biased in favor of the plaintiffs in the Prop 8 case are cut from the same cloth as challenges to the impartiality of black judges in civil rights cases. And they are as unfounded. To paraphrase Judge [Constance Baker] Motley, every judge has a sexual orientation that could form the basis of a recusal motion by one party or another. The argument that a gay judge would be biased in favor of upholding the constitutionality of gay marriage carries with it the opposite implication: that a heterosexual judge would be biased in favor of upholding a ban on gay marriage. If both of these propositions are true, then no judge would be sufficiently impartial to decide the Prop 8 case.