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Judith S. Kaye

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Judging the Judge: A Matter of Rights and Wrongs

Posted: 08/16/10 04:22 PM ET

Every day, judges are called upon to resolve issues profoundly affecting the lives of our citizenry. Despite their diverse backgrounds and life experiences, men and women of good character are united in their commitment to decide each case fairly and impartially, consistent with their oaths of office.

No one would today argue that women judges cannot fairly preside over claims of sexual harassment, or that African-American judges should be disqualified from race discrimination cases. Yet word is now being circulated that the judge who presided over the federal trial regarding the constitutionality of Proposition 8 is gay and therefore should have recused himself from the case.

On August 4, 2010, United States District Court Chief Judge Vaughn R. Walker held in a 136-page opinion that "Plaintiffs have demonstrated by overwhelming evidence that Proposition 8 violates their due process and equal protection rights" under the United States Constitution and struck down that law. Proposition 8 is the California ballot initiative that eliminated the right of same-sex couples to marry.

In the interest of full disclosure, I mention that in 2006, as Chief Judge of New York State's highest court, I dissented from the decision that the New York Constitution does not guarantee same-sex marriage rights. I write, however, not to address the merits of the constitutional issue but to challenge the attacks on Chief Judge Walker designed to influence the outcome of the California case as it enters into the appellate stage and feed the insidious fiction that judging is a political process in which judges decide cases based on personal agendas or political or religious beliefs.

Although Chief Judge Walker has been on the bench for more than twenty years, having been appointed by Republican President George H.W. Bush, his impartiality as a judge is now being questioned, after conclusion of the trial. (Notably, his initial nomination by President Reagan was stalled for two years in large part because of strong opposition from none other than the gay community.)

To be sure, all judges have personal qualities, among them sex, age, race, background, experience and religious beliefs. And thankfully, these characteristics among our Judiciary are more varied than ever before, reflecting the diversity of our society. But this does not mean that judges are less able to look beyond personal factors and decide cases based on the facts and the law. Above all, a judge's personal characteristics should not be the basis for an attack on judicial independence, a bedrock principle of our democracy.

Whatever the truth about Chief Judge Walker's sexual orientation, the contention that a gay judge should be disqualified from ruling on a matter affecting gay litigants is not only groundless but also enormously disrespectful to the judge.

Judges have an affirmative duty in every case to rigorously search their conscience to determine whether they believe they are able to rule fairly and impartially. By definition, Chief Judge Walker did precisely this and concluded that he was capable of deciding this case -- which was randomly assigned to him -- fairly and impartially.

To now presume because of his sexual orientation that he was mistaken, or worse, and based his ruling on personal, not legal, considerations, is a serious accusation, and an attack on the very core of the Judge's integrity. Significantly, the Proposition 8 supporters litigating before Judge Walker did not challenge his ability to decide the case fairly and did not seek his recusal.

If personal characteristics were the automatic disqualifier that Chief Judge Walker's critics suggest it is, where would it end? Should Justice Ruth Bader Ginsburg recuse herself from all sex discrimination cases? She is a woman who spent much of her early professional career advocating for women's rights. Should the Catholic Justices on the U.S. Supreme Court recuse themselves from death penalty and abortion cases because they belong to a church that has registered strong opposition on these issues?

Should Justice Thurgood Marshall have been barred from deciding cases involving civil rights? He was not only African-American but also the NAACP's Chief Legal Counsel and argued Brown v. Board of Education before the Supreme Court. How about the sexual orientation of close family members of a sitting judge -- is that also now to be automatically disqualifying in cases involving gay rights?

When Judge Leon Higginbotham was a young federal District Court judge presiding over an employment discrimination action, he wrote a seminal decision denying a litigant's recusal motion that was based on the judge's being an African-American and having been involved in the civil rights movement. Judge Higginbotham pointed out that until 1961, no judge had been confronted with the issues raised by the defendant's motion because no African-American had been appointed as a federal judge. He concluded: "If blacks could accept the fact of their manifest absence from the federal judicial process for almost two centuries, the plain truth is that white litigants are now going to have to accept the new day where the judiciary will not be entirely white and where some black judges will adjudicate cases involving race relations."

The increasing diversity of the federal and state bench should be viewed as a cause for celebration, not an occasion to attack the men and women who eschew personal financial gain for the job of daily striving to apply the law to the facts fairly and reach a just result. Chief Judge Walker, our Judiciary and our justice system deserve better.