Benching Minority Judges

Earlier this month, Vaughn Walker -- the federal judge in California who ruled that Proposition 8, the state's same-sex-marriage ban, was unconstitutional -- confirmed rumors that he was gay and in a long-term relationship. Seizing on this revelation, those defending the ban filed a motion on Monday to vacate his landmark ruling, claiming he should have recused himself from the case.

Outrage over the motion quickly dominated conversation about the case yesterday, when many on the left argued that Prop. 8 supporters had lowered themselves to homophobic, personal attacks against the judge to save a desperate campaign. Certainly, the entire effort to ban same-sex marriage is based on irrational, anti-gay sentiment, and this latest twist is no exception. But the legal situation is more complex, because it raises a question the judiciary has rarely, if ever, faced: What happens when the judge in a civil-rights case is also part of the minority group whose rights are at stake?

The judicial bench -- traditionally a bastion of privilege and racial homogeneity -- has never been as diverse as it is today. That is, of course, a good thing. But it may signal that minority judges are vulnerable to ethical challenges.

Part of the problem is that the idea of recusal itself is ill-defined. In general, judges are bound by the law to recuse themselves in cases where their impartiality "might reasonably be questioned." For example, Supreme Court Justice Elena Kagan, who formerly worked for the Obama administration, has recused herself from several cases that she was involved with before she joined the Court. In another instance, Justice Scalia came under fire for failing to recuse himself from a case involving his good friend and duck-hunting partner, Dick Cheney. Grounds for recusal are generally narrow. Conversely, according to experts, it is widely acknowledged that a judge's identity alone -- be it gender, sexuality, religion, or ethnicity -- does not disqualify a judge.

But those defending Proposition 8 think they have found a way around that. They make the case that it is not Walker's sexuality per se that's the problem but rather that he is gay and in a long-term relationship; he might want to get married, making him unfit to rule on the constitutionality of Prop. 8:

For only such an unequivocal disavowal [of any interest in marrying his partner] would negate the strong inference, arising from his acknowledged longterm, committed relationship and his findings in this case concerning the benefits of marriage for same-sex couples, that he has a personal interest in exercising the federal constitutional right he recognized to marry a same-sex partner should the injunction he issued be affirmed.

But the Prop. 8 opponents are straining. According to William G. Ross of the Cumberland School of Law at Samford University, disqualifications generally aren't granted on what the motion calls "strong inferences." It's highly speculative, Ross says, that Walker does want to get married; gay marriage was legal in California before Prop. 8, and some 18,000 same-sex couples were married during that time, but Walker wasn't among them. And he could still marry in another state if he changed his mind. Lastly, while there are financial benefits to getting married, no one knows the circumstances of Walker's finances or those of his partner.

The motion relies heavily on a single Supreme Court precedent that has become the standard for recusal: Liljeberg v. Health Services Acquisition Corp. In Liljeberg, the Court vacated a ruling about ownership of a hospital because the district judge was on the board of Loyola University -- a party to the case. That is what makes the argument against Walker odd: Except for a few cases, almost all precedents for recusals arise from personal or financial conflicts of interest.

"It's rare that you have a case like this one where the plaintiffs are seeking a form of relief that would benefit the judge in a non-financial way," says Arthur Hellman, an expert on judicial ethics at the University of Pittsburgh School of Law, trying to remember a similar case.

The reason legal experts are grasping for a comparison comes down to the traditional makeup of the judiciary itself. Until very recently, judges have been (presumably) straight, white men from privileged backgrounds. In other words, they have not been part of the many classes of people who have used the courts to expand their civil rights. But, from Walker to Supreme Court Justices Sonya Sotomayor and Clarence Thomas, the United States has reached a point where members of a disadvantaged minority are on the judicial bench yet remain discriminated against.

If Walker's decision is vacated, this situation may well give rise to a new species of ethical conflicts. While the motion to vacate Walker's ruling is certainly offensive in parts, by using Liljeberg and other similar rulings to demonstrate Walker's conflict of interest, Prop. 8 opponents are essentially arguing that an interest in full equality is the same thing as a financial interest.

Extending the logic of a ruling that says Walker should have recused himself is disturbing. If a gay man who might want to marry his partner can't preside over a gay-marriage case, what other judges might be kept from ruling on other civil rights issues? If redistricting in a Southern state were challenged for weakening black representation, could a black judge hear the case if he were also highly involved in that state's Democratic Party? Could a female judge of procreative age who was known not to want children rule on a challenge to Roe v. Wade? "Vacation [of Walker's ruling] would certainly encourage other disqualification motions," says Ross, but that's why the courts "generally guard against decisions that would prevent judges from sitting on cases."

The motion against Walker is in unchartered territory, so it's unclear if a judge will find it convincing. But the sentiment behind it highlights the sad truth that judges are usually members of a group -- namely straight, white, heterosexual men -- who enjoy more privileges under the law and whose impartiality is never questioned. "Typical cases affect groups that judges aren't members of, such as criminals or people on welfare," Hellman says. "There aren't many laws challenging a middle-class way of life."

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