Sat. August 7, 2010
San Francisco -
A judge is supposed to be an unbiased arbiter of facts, but critics of California's Prop. 8 decision say there's no way Judge Vaughn Walker could have been impartial. That's because he's gay.
The issue is a hot one. When you're done reading, let us know what you think.
Dante Ramos, Boston.com:
After Wednesday's ruling, Tim Wildmon of the American Family Association urged the House of Representatives to impeach Walker for failing to recuse himself. This line of argument gets ugly fast; if only non-gay judges are qualified to rule on gay-rights issues, shouldn't allegations of discrimination against women go only before judges who are men?
For Walker, it had to be jarring to hear himself likened to "a judge who owns a porn studio [who is] being asked to rule on an anti-pornography statute,' as Wildmon put it.
Gerard Butler, FOXNEWS.com:
The neglected bias in the Prop. 8 trial has instead to do with the fact that – as reported in The Los Angeles Times last month – Judge Walker "attends bar functions with a companion, a physician."
If (as The Times suggests) Judge Walker is in a stable same-sex relationship, then he might wish or even expect to wed should same-sex marriage become legally available in California.
This raises an important and serious question about his fitness to preside over the case. Yet it is a question that received almost no attention.
When a judge is obliged to withdraw from a case due to a conflicting interest we call it "recusal."
Federal law requires that, whenever a judge knows that he has "any other interest [ that is, besides a financial interest] that could be substantially affected by the outcome of the proceeding" at hand, or when "his impartiality might reasonably be questioned", he must recuse himself.
I am not saying that Judge Walker should have refused himself in Perry v. Schwarzenegger.
I am not saying so because nowhere (as far as I know) has Judge Walker volunteered or been made to answer questions about how the outcome of that case would affect his interest (whatever it is) in marrying, and thus his interest in the manifold tangible and intangible benefits of doing so.
That is a conversation worth having.
And, sadly, it is quite too late to have.
Andrew Sullivan, in TheAtlantic:
Does it matter that Walker is gay? It's an interesting question, I suppose. Did it matter that Thurgood Marshall was black? Should he have recused himself from civil rights decisions that affected African-Americans? I can't see that many would agree with that.
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