Don't Judge Me
Last week, the San Francisco Chronicle reported that "the biggest open secret" in the federal case currently being argued in California challenging Proposition 8 is that the judge who is hearing and deciding the case, Vaughn Walker, is gay. In accordance with the normal procedures for district courts, Judge Walker was randomly assigned to hear the Prop 8 case. While Judge Walker has not publicly declared his sexual orientation (nor should he be expected to), the newspaper's story has nonetheless sparked a debate about whether his sexual orientation should be relevant to the trial and whether he should have recused himself from the case.
On the question of whether or not his sexual orientation is relevant, Ashby Jones of the Wall Street Journal Law Blog declared, "it's hard to see how it isn't, especially if you believe that the opinions of judges, try as they might to divorce their personal opinions from their rulings, are invariably colored and informed by their own experiences, just like the rest of us." But, of course, this begs the question of whether a straight judge would have been the subject of similar accusations of bias. As People for The American Way explained so eloquently, "The unspoken offensive presumption at work here is that people who come to the law with a life experience that is considered "normal" - say, straight white male Christian - are inherently unbiased, or that their life experience somehow gives them a singularly correct way of viewing the law. Others are suspect."
Setting aside the legal question of whether Judge Walker had to recuse himself, there is the question of whether he should have recused himself. This is largely a question of optics. Debra Sanders of the San Francisco Gate makes this argument: "The problem is that where there may not be a conflict of interest, there may be the appearance of conflict - and that matters, too. Many California voters already are fed up with imperious judicial rulings - and a majority of California voters approved Prop. 8. While Walker certainly did not have a legal obligation to recuse himself, it might have been better if he had let some other judge decide this case." But, is this a betrayal of principles? Would Judge Walker's recusal simply be a nod to those who believe that his sexual orientation makes him inherently biased?
Of course, these questions are largely rhetorical because Judge Walker has not spoken about his sexuality, has not recused himself, and has not indicated that he has any intention of doing so. But, the debate raises fundamental questions about how we portray and understand the process of judging and the people who sit on the bench.
What do you think?