NOM Attacks, SF Chronicle Defends Impartiality of Gay Prop 8 Judge
On Sunday, the SF Chronicle "outed" Prop 8 trial Judge Vaughn Walker (at least, was the first mainstream media to do so — it was an "open secret" as they said). In the article, it was predicted that Walker would be attacked for having bias in the case.
So, predictably, the National Organization for Marriage has come completely unhinged. Writes Brian Brown in NOM's typically paranoid and victimized fashion:
We have no idea whether the report is true or not. But we do know one really big important fact about Judge Walker: He’s been an amazingly biased and one-sided force throughout this trial, far more akin to an activist than a neutral referee. That’s no secret at all.
Protect Marriage, the defendants in this case are effectively being held hostage by Judge Walker and cannot really comment.
Walker has presided over a show trial designed to generate sympathetic headlines and news coverage for gay marriage supporters. Witness after witness was allowed to testify about their “expert” opinion that homosexuals have been discriminated against, that they feel badly when society does not validate their relationships, and that the passage of Prop 8 was simply an echo of historic prejudice and bigotry foisted on society by religious zealots.
Judge Walker’s bias has been so extreme, he’s earned a rare judicial “twofer.” Key elements of his “fishing expedition” rulings were already reversed by the Ninth Circuit Court of Appeals (notably one of the most liberal in the nation) and the Supreme Court had to step in to block his illegal attempt to broadcast the trial.
It is highly unusual for a higher court to have to intercede in a trial judge’s handling of a trial while it is going on — yet Walker has had that “distinction” twice in the same case — and we’re not yet even at closing arguments.
There’s only one saving grace to Judge Walker’s bias. It’s so big, and so obvious, not only the American public but the Supreme Court itself is already aware we have bias in the trial judge presiding.
Karen Ocamb at LGBT POV handily takes apart Brown's arguments.
The SF Chronicle came out today in defense of Walker's impartiality:
Today, at age 65, Judge Walker is presiding over the challenge to Proposition 8, which may well determine how quickly gays and lesbians achieve full marriage equality in this country. We now know what Walker never bothered to reveal when he was being castigated as anti-gay: He is gay, which changes neither his legal history nor his fitness for this assignment.
A judge's sexual orientation does not inherently shade his ability to read and interpret the U.S. Constitution with clear-eyed wisdom. Assuming this case advances on appeal, no matter how Walker rules, there almost certainly will be jurists who will need to set aside their religion's teachings - and, quite likely, the impact of their ruling on close friends or even a family member - as they do their utmost to uphold the meaning of the Constitution.
Walker did not think his private life was relevant to his ability to preside with fairness in the Prop. 8 trial. There is nothing in his long and laudable career to suggest otherwise.
And Chronicle columnist Debra Saunders asks, "Does Walker have a conflict?"
Until Sunday, it seemed inevitable that however Walker ruled, the losing side would bring up his sexual orientation. If he overturned the measure, losers would hit the conservative media to argue that with a gay judge presiding, the fix was in from the start. If Walker upheld the measure, angry gay activists would denounce him as a self-loathing turncoat.
Now, whatever Walker decides, the public can't complain that he had a sub rosa agenda.
Walker is not a predictable man. As a private attorney, he tangled with San Francisco's Gay Olympics to protect the U.S. Olympic Committee's brand name. Appointed to the bench by President George H.W. Bush, Walker's libertarian streak has led him to advocate legalizing drugs.
But I still wonder if he should have recused himself from this case.
There are strong reasons not to. After all, at The Chronicle, gay reporters can and do cover gay issues with the advantage of personal insight. Some might claim that they are biased, but it's not as if there is a neutral identity - straight? white? male? - that is free from bias.
And where does it end? Should a Mormon judge have to recuse himself? A devout Catholic?
A lawyer friend explained to me that a federal judge constantly has to preside over cases argued by former associates and friends, yet the expectation of impartiality remains. To recuse oneself because of broad identity issues, this lawyer argued, would be to admit to being influenced by extra-legal considerations.
I've got a bad feeling we'll never hear the end of this.