Saturday, August 7, 2010

More on Judge Walker

One of my random questions about the Prop 8 case was whether it mattered at all that Judge Walker is supposedly gay.  In a short profile of Judge Walker, New York Times reporter John Schwartz address this issue at some length:

[S]everal published reports have stated that [Judge Walker] is himself gay. In February, The San Francisco Chronicle called it an “open secret.” Critics have argued that his sexual orientation was a source of bias that should have disqualified him from hearing the Proposition 8 case. Judge Walker has declined to discuss the matter.
Monroe H. Freedman, an expert in legal ethics at Hofstra Law School, said that while bias could lead to recusal in rare cases, “you could say, ‘If a gay judge is disqualified, how about a straight judge?’ There isn’t anybody about whom somebody might say, ‘You’re not truly impartial in this case.’ ”
Mr. Freedman cited a 1975 opinion by Judge Constance Baker Motley of Federal District Court, an African-American jurist who was asked to disqualify herself from a lawsuit alleging unlawful discrimination. “If background or sex or race of each judge were, by definition, sufficient grounds for removal, no judge on this court could hear this case, or many others,” she wrote.

I agree with Mr. Freedman and Judge Motley.  But it seems to me there's a deeper point here.  Apparently this issue is so well-settled and accepted that the attorneys defending Prop 8 didn't even think it was worth raising.  This is another sign of how much our culture has changed in its treatment of gays--now a gay judge presiding in a court trial over a momentous issue of gay rights is simply unremarkable, even to zealous advocates.  However the Prop 8 comes out after the appeals, I think the fact that a gay judge was allowed to act as the trial judge without so much as a peep is a sure sign the campaign for gay rights and gay marriage will ultimately succeed.

This brings to mind some of the early controversy surrounding Justice Kagan's sexual orientation.  As you'll recall, there was a report on stating that Kagan is gay.  Kagan said nothing, but the White House criticized the report as containing "false charges."  Then there was a lot of teeth-gnashing among pundits about whether it should even matter.

I always thought it--the truth about Kagen's sexuality--mattered, though not to whether she is qualified to serve on the Supreme Court (as she clearly is).  If we are actually supposed care about diversity or "empathy" -- and maybe we actually aren't -- then it matters.  Moreover, having an openly gay member of the Supreme Court would be another big step for gay rights, no?  On the other hand, another closeted member of the Supreme Court would seem to be a step back.  Either way, the truth matters.

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