Posted Wednesday, Aug. 11, 2010, at 11:29 AM
As Tracy Clark-Flory pointed out Tuesday, it's wrong to call Judge Vaughn Walker openly gay. Whatever his private life, he's not out in public, which leads to a weird awkwardness for the judge's fans, who would like to claim him as a gay hero for striking down California's same-sex marriage ban, Proposition 8. But the judge's critics have had no reservations about how Walker's sexuality plays: Tony Perkins, president of the Family Research Council, said Walker should have recused himself from the Prop 8 case and the American Family Association thinks that Walker's "judgment [was] compromised by his sexual proclivity." This is ridiculous. Judges are expected to recuse themselves from cases in which they have a financial interest. They also do it if they've worked on a case before it reaches them. (That's why Elena Kagan won't hear 11 cases involving the Obama administration next term.) And it's a bad idea for them to express a view about a pending case and then rule on it: Remember Scalia recusing himself in the Pledge of Allegiance case? But the notion that a judge's identity marks him as biased-well, to show us just how wrongheaded that is, Sherillyn Ifill mines the history of recusal motions filed before African-American judges:
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.... Motley refused to withdraw from presiding over the case, offering the now classic explanation that "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, by virtue of the fact that all of them were attorneys, of a sex, often with distinguished law firm or public service backgrounds."