About Judge Walker
This shouldn’t need to be said. I feel like I should say it anyway. The argument, in the Prop 8 appeal, that Judge Walker’s sexual orientation makes him biased is bullshit. And it’s a particularly pernicious kind of bullshit. It’s the bullshit by which a majority tells itself that its members are the default human beings.
I don’t know Judge Vaughn Walker’s sexual orientations. He was appointed by Reagan, couldn’t get confirmed, and was reappointed by Bush 41. At the time, liberals including Pelosi opposed him, believing he was anti-gay, because he had represented the Olympic Committee in trying to keep a GLBT event from using the “Olympic” name. Nobody is worried about that anymore. He’s a quizical, (dare I say it?) mavericky libertarian-leaning fellow. He is very, very smart. And he is not willing to do favors for the social conservatives. All that adds up to a judge who dismissed unsupported opinions and arguments with nothing behind them for what they are … since that’s all marriage segregation proponents have, this puts them in a bad spot.
I expect the actual proponents of Prop 8, if they even have standing to appeal, will steer clear of Judge Walker’s orientation. We can all sleep through the rest of this, until it hits Anthony Kennedy’s desk. This isn’t even up to the Supreme Court, where eight of the nine votes are foreordained. It’s up to one justice. The rest of this is just playing out the hand. The Prop 8 supporters had better not piss off Kennedy, and attacking the trial judge on personal grounds runs the risk of convincing him that this really is all about bigotry. They can’t afford that.
So it’s bystanders (amici, latin for “friends”, short for “amicus curiae“, friends of the court, who ask permission to file briefs even though they’re not directly involved in the case) who will bring it up. And it will go nowhere, because it’s bullshit, and it’s not the first time around for this bullshit.
Steve Gillers (on the shortlist of the recognized experts on judicial and legal ethics, Giller’s text sits on my shelf in the office) said this:
“the argument that your identity colors your ability to be impartial — whether you are black, a woman, or gay — has been repeatedly rejected by the courts.”
As Media Matters points out, someone tried that with Constance Baker Motley, the first African-American woman on a federal bench. The quotable Motley reasoned:
“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.”
If we’re dealing with this intellectually and not just slinging mud, this is about what impartiality means, and that’s why I said this was pernicious. Don’t we all know that objectivity is impossible? We can’t hear evidence and arguments and then rule on them as though we hadn’t had the life experiences we have had. None of us can do that.
None of us can. And that’s the answer that Motley gave. People whose experiences have been exclusion and marginalization and oppression are going to bring a different view to a case than people whose experiences have been fairly consistently centered. But if we require judges to stand aside when their experiences most directly inform what’s before them, we’re saying that the valuable experience is the one that has always been centered. That’s just giving a permanent inside-track to the status quo, not because the status quo is right, but because it’s a set of preconceptions and biases that are more comfortable for more people to contemplate.