Challenging Judge Walker

Critics of the decision overturning California's anti-gay marriage law are suggesting the judge is homosexual. It's like the argument once made that black jurists couldn't be impartial.

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Recent statements challenging the impartiality of U.S. District Judge Vaughn Walker -- the author of last week's decision striking down California's anti-gay marriage law -- are sadly reminiscent of arguments challenging the impartiality of black judges presiding over civil rights cases 30 years ago. The leader of the conservative Family Research Council gave robust voice on Sunday to the mutterings of conservatives since Judge Walker's monumental decision last week: namely that Judge Walker's sexual orientation (the subject of rumor) rendered him unable to impartially decide the constitutional challenge to Prop 8.

According to Tony Perkins, president of the Family Research Council, Judge Walker should have recused himself from hearing the case because, according to published reports, he is gay. Representatives of the American Family Association have argued that Walker's "judgment [was] compromised by his sexual proclivity." This is an ugly and desperate charge -- among the worst one can make against a judge: that he allowed his personal interests to dictate the outcome of a case. It should be answered swiftly and decisively, because the implications of this charge extend far beyond the Prop 8 case.

Rumors about Judge Walker's sexual orientation were well-known to attorneys for the state of California long before the trial concerning Prop 8. Why, then, didn't the State of California file a motion seeking the recusal of Judge Walker? The simple reason is that 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.

Under federal recusal statutes, judges should be disqualified from hearing cases in which they are actually biased, but should also withdraw from cases in which their impartiality might reasonably be questioned. 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.

In perhaps the most famous of these cases, lawyers representing the New York law firm of Sullivan & Cromwell requested that federal district judge Constance Baker Motley recuse herself from hearing a case brought by women lawyers at the firm who charged discrimination in hiring and promotion. The law firm's motion for recusal was based on Judge Motley's status as a black woman and her professional experience as a former civil rights lawyer. The late Judge Motley is most famously known as the NAACP Legal Defense and Educational Fund (LDF) lawyer who litigated nearly all of the cases seeking to desegregate universities throughout the South. She represented James Meredith in his contentious and ultimately successful battle for admission to the University of Mississippi. After leaving the LDF, she served at a New York assemblywoman and as borough president of Manhattan.

A year earlier, federal district judge A. Leon Higginbotham (also now deceased) refused to recuse himself from a case adjudicating the claims of African-American union members who charged that a local contractors' union discriminated against them. Lawyers for the union based its challenge to Judge Higginbotham on a speech the judge had given before a group of African-American historians in which he used the word "we" in describing African Americans. The judge's use of the term, according to lawyers for the defendant union, was "evidence [of the Judge's] intimate tie with and emotional attachment to the advancement of black civil rights."

Judge Higginbotham rejected the challenge to his ability to impartially decide the discrimination case. In his opinion denying the recusal motion, he refused to accept a definition of impartiality in which "the impartiality of a black judge can be assured only if he disavows, or does not discuss the legitimacy of, blacks' aspirations to full first-class citizenship." Judge Higginbotham argued that "[white] litigants are going to have to accept the new day where the judiciary will not be entirely white and where some black judges will adjudicate cases involving race relations." From Texas to Illinois, other black federal judges fought off similar motions filed by defendants in civil rights cases, including one in which lawyers for the Ku Klux Klan sought to remove Judge Gabrielle McDonald from hearing a case on the grounds that she was "prejudiced against the Ku Klux Klan."

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 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.

A judge's status -- as gay, a woman, an African American or a former civil rights lawyer -- is no more indicative of bias than the fact that a judge is a man, white, a heterosexual or a former corporate lawyer. Those who seek to discredit Judge Walker's decision based on the allegation that the judge was biased are barking up the wrong tree. They are also raising the ugly specter of judicial bias based on status.

Judge Walker's 138-page opinion cannot be dismissed as a reflection of personal interest or predilection. The opinion is impressive in its careful reasoning and comprehensive analysis of the legal issues and factual record. Critics of the decision -- which is surely headed to the Supreme Court -- will need to find considerably more solid grounds on which to challenge it than seeking to discredit the impartiality of Judge Walker.

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