Dahlia Lithwick writes about Prop 8 supporters effort to disqualify Judge Vaughn Walker, who ruled that Prop 8 was unconstitutional, because he is gay and in a committed relationship:
And what of the argument that Judge Walker stood to benefit personally from his own ruling in the Prop 8 case? Wouldn't—by this logic—a straight judge similarly stand to benefit from a ruling upholding Prop 8? Certainly under the plaintiffs' theory of the case (i.e., that every last heterosexual in America will be harmed by legalizing gay marriage) wouldn't a straight judge have been forced to recuse herself as well to avoid the possibility of personally benefitting from her ruling?
I made a similar argument when Prop 8 supporters filed the motion to vacate Walker's ruling. If same-sex marriage hurts straight marriages, then a straight judge has just as much as stake as a gay judge. Prop 8 supporters, by seeking to vacate Walker's ruling, are either implicitly conceding the point that same-sex marriage doesn't hurt straight marriages or simply arguing that only straight people can be objective arbiters of the law. The choice between being a bigot or a liar doesn't seem particularly appealing to me.
In any case Chief Judge James Ware seemed irritated with the obvious double-standard the pro-Prop 8 side was trying to enforce here (via Ian Milhiser):
[T]he presumption that “all people in same-sex relationships think alike” is an unreasonable presumption, and one which has no place in legal reasoning. The presumption that Judge Walker, by virtue of being in a same-sex relationship, had a desire to be married that rendered him incapable of making an impartial decision, is as warrantless as the presumption that a female judge is incapable of being impartial in a case in which women seek legal relief. On the contrary: it is reasonable to presume that a female judge or a judge in a same-sex relationship is capable of rising above any personal predisposition and deciding such a case on the merits. The Motion fails to cite any evidence that Judge Walker would be incapable of being impartial, but to presume that Judge Walker was incapable of being impartial, without concrete evidence to support that presumption, is inconsistent with what is required under a reasonableness standard.
That's exactly what conservatives implied about Sonia Sotomayor with regards to race during her confirmation hearing, although it's not really meant to be broadly applied. When women or people of color issue decisions that conservatives feel are correct, then they're being "objective." If they don't like the decision, then they're being influenced by their personal background. In other words, it's perfectly possible for minorities or women to be impartial judges, as long as conservatives agree with their decisions.
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