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Can a Judge Be Biased Because He Is Gay?

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Judges are human.

That simple fact seems to have escaped Protect Marriage, the group that sponsored the ballot initiative barring same sex marriage in California. Federal judge Vaughn Walker (now retired) struck down the initiative as unconstitutional. After his decision against it, Protect Marriage argued that Judge Walker had a disqualifying interest in the case because he is a gay man who might, one day, want to marry his partner. While a federal court disagreed back in June, this week the Ninth Circuit Court of Appeals agreed to review the question.

Federal judges are required to recuse themselves from hearing cases in which they have a direct financial or personal interest. By law, Judge Walker could not decide a case about a company in which he owned stock, nor could he have heard a case in which a family member or close friend was a party.

But essential aspects of the human condition -- such as sexual orientation and loving relationships -- cannot be grounds for requiring that a judge step aside.

For if they were, then who could hear a case about same sex marriage? Certainly not a heterosexual, married judge, because Protect Marriage argues that same sex marriage undermines such "legitimate" unions. Likewise, a divorced heterosexual judge might blame her marriage's demise on the proliferation of laws permitting same sex marriage in other states. Even a single judge might have a gay sibling or close friend who wants to marry his partner. Under Protect Marriage's logic, all are biased and all must step aside.

The truth is that every judge comes with a race, gender, sexuality, family, friends, and a host of other biological characteristics and personal experiences that color their view of the world. That's a good thing. We want black (and white) judges to decide cases about affirmative action. We want female (and male) judges to decide cases about gender discrimination. And we want gay (and straight) judges to decide questions about same sex marriage. Even if we could find race-less, gender-less, asexual hermits to serve as our judges, why would we want such isolated individuals to address the vital issues facing our society? Rather than try to strip judges of their humanity, we should instead seek to fill judgeships with thoughtful people who strive to understand perspectives that differ from their own and remain neutral when deciding cases questioning viewpoints they personally hold.

And there's a bigger issue here: the public's confidence in our system of justice. Under federal law, litigants may have the right to seek to disqualify a judge who they believe to be biased -- an important safety valve to protect litigants in those rare cases in which a judge has a real conflict of interest and yet refuses to step aside. But such challenges to a judge's partiality should be used sparingly. Lawyers who seek to remove a judge because of a judge's gender, race, sexuality, or some other immutable characteristic undermine the principle (lofty as it may be) that our courts are forums where we decide cases based on the merits, not on political ideology.

The legal profession is much maligned, with late night comedians making jokes comparing lawyers to sharks and snakes and the public perceiving lawyers as less than trustworthy and out to make a buck. Disputes like this one contribute to that image, one that is damaging to the profession. When lawyers question the impartiality of a judge like Vaughn Walker, they suggest that we live in a balkanized world in which we cannot trust judges who look -- or live -- differently from litigants to decide their cases fairly.

Is this the way we want to litigate? Without humanity? Inherent to every attorney/client relationship are two sets of goals: the attorney's and the client's. Presumably, both seek to win the case -- but a lawyer's job is to develop and recommend strategy to the client. It would be bad enough to suppose that the client suggested to the lawyer that a viable line of attack would be to challenge Judge Walker's impartiality based on his sexual orientation; a lawyer in that situation would responsibly have to discuss the pros and cons of such an approach, if not reject it out of hand. But it would be perhaps worse to imagine the alternative: that a lawyer, sworn to uphold justice, decided that a viable means to a winning end would be to undermine Judge Walker's credibility by representing his life circumstances as relevant to his ability fairly to judge the case.

Let us hope that the Ninth Circuit will acknowledge the value of a system that allows human beings to judge.