Smearing the Judge

In the wake of Judge Vaughn Walker’s decision in Perry v. Schwarzenegger, political commentators on both sides of the issue of same-sex marriage have not been shy to express their opinions about the ruling.  One common refrain from the supporters of Proposition 8 has been that Judge Walker is (reportedly) gay, and was therefore biased in deciding this case.  This allegation has not just come from cable news pundits on evening talk shows, but also from Professor Gerald Bradley of Notre Dame Law School.  Professor Bradley argued that suggestions that Judge Walker may be in a same-sex relationship raise “an important and serious question about his fitness to preside over the case.”

When commentators such as Professor Bradley use reports about Judge Walker’s sexual orientation to question his objectivity, their own lack of objectivity is clear.  These arguments are intellectually disingenuous at best, and patently discriminatory at worst.

Foremost, Judge Walker did not choose this case; it was randomly assigned to him.  He faced the difficult task of ruling on a case that concerns a subject on which society is deeply divided.  Regardless of his decision, he faced the prospect of ridicule and criticism from one side or the other.

Many of the attacks on Judge Walker have not been based in sound legal reasoning, but thinly-veiled discrimination.  It seems doubtful that commentators like Professor Bradley would argue that we should engage in a dialogue questioning the objectivity of African-American, female, Catholic, or Jewish judges and their ability to be impartial on a number of matters.  Would they suggest that Supreme Court Justice Clarence Thomas might not be fit to sit on a panel reviewing a case about affirmative action, where he might have a “personal interest” vis-à-vis his grandchildren?  Would Thurgood Marshall’s objectivity have been questioned if he had started his time on the Court two months earlier when the Court was deciding Loving v. Virginia (the case that struck down laws making interracial marriages illegal)?  Should married judges be subject to inquisition when sitting on a case about the scope of the marital privilege, or liability arising out of adultery?

Indeed, the proponents of Proposition 8 argued vehemently that opposite-sex marriages are harmed in a very real way by allowing same-sex marriages, that the institution of marriage is thereby destroyed and devalued.  A married heterosexual judge might want to protect his or her own marriage from such “deinstitutionalization,” and one could therefore suggest that he or she would have a personal interest in the outcome of cases like Perry.  It seems doubtful, though, that these commentators would question the objectivity of such heterosexual married judges.  If this understanding of recent commentators’ positions is mistaken, we should expect to read their articles questioning the impartiality of married members of the Ninth Circuit Court of Appeals should they hear the Perry case on appeal in the coming months.

Some commentators have tried to cloak their discriminatory perspective by bringing up the question of Judge Walker’s sexual orientation, then swiftly proclaiming that they are not saying he was biased because of it.  What, then, was the point of bringing up his sexual orientation at all?  Such rhetorical maneuvers appear designed to encourage inferences that prey on people’s prejudices, and these prejudices have no place in debate about the merits or correctness of Judge Walker’s ruling.

Of course, to some extent we should be concerned with the potential political and personal influences on every judge in every case.  As the confirmation hearings for Supreme Court Justice Sonia Sotomayor made clear, issues related to the merits of diverse judicial perspectives, and the tension between bias and perspective in the judiciary and elsewhere, may warrant discussion and debate.  But to question Judge Walker’s “fitness to preside” solely because of his possible sexual orientation implies that gay and lesbian judges are somehow less capable of ruling objectively than are other judges.  Singling out a possibly gay judge as more deserving of scrutiny is the very definition of discrimination.

We should expect more from those who call themselves scholars and have assumed the role of educating students and the broader public about the law.  Regardless of how we each may feel about the issue of same-sex marriage, there is no legitimate reason to imply that gay and lesbian judges, because they are gay or lesbian, are somehow less able to be objective than anyone else in ruling on cases that implicate issues that may relate to their lives.  Tolerance and respect for members of our federal judiciary are traits we all should share.

To be sure, not all members of the anti-gay marriage position have attacked Judge Walker because of his alleged sexual orientation.  Professor Robert George, founder of the American Principles Project and McCormick Professor of Jurisprudence at Princeton University, questioned whether Judge Walker followed the law, but at no point did he attribute any alleged error to bias stemming from Judge Walker’s sexual orientation.  Professor George’s criticism would have applied equally to any member of the judiciary who ruled as Judge Walker did.  Professor’s George’s ability to critique Judge Walker without focusing on his sexual orientation underscores the discriminatory basis of arguments like the one made by Professor Bradley.

Everyone has a right to his or her opinion.  However, hiding discrimination behind intellectual arguments about “bias” and “personal interests” encourages weak thinking.  It does not teach us to properly question the objectivity of judges, but rather encourages us to rely on our own lack of objectivity when crafting legal arguments.  Regardless of our personal views and jurisprudential leanings, we should all be able to agree that the national dialogue on these issues deserves more.

SCOTT GRZENCZYK is a law student at the University of California – Davis School of Law.





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