This is the same charge of inherent—even unconscious—bias based on status that was leveled against then-Judge Sonia Sotomayor at her Supreme Court confirmation hearings when her opponents alleged that unlike a white man, a Latina woman could never be impartial in a case involving allegations of race discrimination. The notion that only straight judges can be unbiased about gay marriage is as silly as the argument that only whites can be objective about race. It's also an argument that can be deployed as readily against Clarence Thomas and Janice Rogers Brown as against liberal jurists.
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?
Presumably if Walker had wanted to marry his partner in California he could have done so during the period of time in which gay marriage was legal there. He didn't. And presumably, Walker could still marry his partner in another state that recognizes gay marriage. He hasn't. Given that he hasn't chosen to get married when and where he could, it hardly makes sense for ProtectMarriage to claim that his anti-Prop 8 ruling is the functional equivalent of "issuing an injunction directing a state official to issue a marriage license to him." Is merely imagining a potential conflict of interest sufficient to create one? Where, precisely, do imaginary claims about imaginary judicial life plans stop?
And what of the argument that Judge Walker had an obligation to disclose his relationship to the parties, thus allowing them to determine for themselves whether he was planning to marry his partner? Legal ethics experts seem to differ on this matter, but given that the defendant-intervenors claim about Walker's secret marriage plans is fictional, it's hard to understand how they would have proven it prior to trial any more effectively than they managed to prove it today.
Early word from the hearing today is that Judge Ware is having a hard time with the plaintiffs' assertion that Judge Walker planned to marry his partner because plaintiffs say so. Ware has said he will rule quickly—probably in a day or two—but it's difficult to imagine that he will be willing to entertain an argument about judicial bias, based not merely on a judge's status, but also on unfounded assertions about that judge's hidden marital aspirations. Nobody is suggesting that judges have no opinions or that life experience doesn't inform their ideas. But there is no evidence at all that Walker was unable to look past sexual preference to decide this case on its merits. And perhaps this is a good a time as any to recall that the proponents of Prop 8 failed so miserably at trial precisely because vague, unsubstantiated charges of conspiracy, secret agendas and inchoate social harms aren't really legal arguments in the first place.
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