Recuse your own damn self

The minute the San Francisco Chronicle published the fact that Judge Vaughn Walker was gay, the question of whether or not he should recuse himself from Perry v Schwarzenegger was brought front and center. Never mind that it’s the folks who didn’t like the judge’s ruling who are now going for the judge’s throat. And that folks like me, who have strong personal reasons for supporting the judge’s decision, will jump to his defense. It’s always good to stand back and have a look at who is judging us. Always good to ask whether the job is being done fairly. And always good to question the motives of everybody involved in the discussion. Talk is good if people don’t stop thinking and listening as they engage in it. The challenge here is, as always, to separate the good talk from the nonsense.

I’ll be honest with you. When I heard the judge was gay, I breathed a sigh of relief. At least he won’t buy into the “mentally disordered” thesis, and quite possibly he will let his own life experience influence his decision. I bought into the view that it’s good to have women on the Supreme Court because women might just have different biases from the ones men have, biases which might be enough, in a pinch, to push a case favoring the interests of women.

That was my first, my gut, reaction.

It was followed almost immediately by a sense of panic. “Oh no,” I thought. He’s a Republican. Appointed by Reagan and rejected by democrats and liberals until he finally made federal judge under Bush Senior. The man screams “self-loathing homosexual.” He’s going to decide against gay rights and the world is going to get to say, “See, even the gays themselves know they have no right to ‘special favors.’”

I carried that sense of dread for some time. And I remember the exact moment when it lifted. I was following the trial carefully and when the pro-Prop. 8 side brought in the argument that marriage was for procreation and I heard Walker say he had just married and 80-year-old to a 90-year-old and he doubted they had procreation on their minds, I jumped out of my chair. This guy is not only reasonable; he has a sense of humor. We may just be OK.

Turns out we were. His decision came down with all the nuts and bolts firmly tightened, all the t’s crossed, all the i’s dotted. It was a brilliant summation and the complete absence of evidence to the contrary suggests it’s going to be hard, if not impossible, to overturn without a strong argument that anti-gay animus has a legitimate state interest. Not to say Scalia and the boys might not go that way. At least they’ll have their work cut out for them, thanks to Vaughn Walker.

It also turns out that the anti-gay rights people were mirroring my thinking process in reverse, from Oh good he’s a Republican to Oh damn he’s gay.

Think about how often you hear people say we have to elect more Republicans, more Democrats, more women and minorities, more whatever. We all think like that. We all buy into the view that our identity will seep into our politics. If you are Jewish, who would you rather see representing the State Department, a Jewish American or an Arab American? If you are a foe of any and all abortions, who would you want to represent you on the Supreme Court, a judge who follows what he calls “traditional” Catholic teaching or a judge who tells you church and state must be kept separate? We all lean in the direction of getting our way by any means necessary. When judges go our way, we accept the decision as good fortune. When they don’t, we worry aloud about the objectiveness of the judiciary.

When a friend wrote recently raising the issue of Walker’s objectivity, I responded:

And Justice Thomas should recuse himself every time a racial issue reached the Supreme Court so only the white people could decide, since we know white people are the only objective people.

And Judge Ginsberg should recuse herself every time a Jewish issue reached the Supreme Court so only the Christians could decide, since we know Christians are more balanced than Jews.

And when a black man is killed by a white man, there should be only whites on the jury. Same reasoning as above.

And when a woman kills her husband who has been abusing her, there should be no women on the jury, because we all know women are emotional and cannot put reason and a sense of fairness ahead of their emotions.

Shall I go on?

The friend took my sarcasm in stride, bless her heart, and I felt the issue was now a settled no-brainer. We could move on to other things.

But then, in this morning’s San Francisco Chronicle, there’s this claim by law professor John C. Eastman, who takes the charge against Judge Walker to a higher level. Eastman argues it’s not only that he’s gay, but that he may well be in a gay partnership and might benefit personally from having his right to marry back. That, Eastman says, is precisely the kind of vested interest that argues for recusal.

Setting aside the curious facts that Eastman is working not with facts but with innuendo, and with the fact that the recusal demands are being made after the decision, not when the allegation of Walker’s sexuality first came out, a cynic might wonder whether Eastman would have written this article if the judge had been an adherent of a religious body, or if, like Eastman, he taught at a Christian college? Would it have been OK if the judge had been a gay man who spent his time cruising the bars night after night for new flesh to rub up against? A guy with no interest in ever getting married? A bisexual happily married to a woman who has sex with men on the side?

Would it have been OK if the judge had never met a gay person in his life who wasn’t closeted and reached the conclusion that gay people were too fragile from years of oppression to be allowed to marry just yet?

In short, should we have tests to see what judges’ views are on anything and everything to do with the cases before we let them get involved?

Or should we proceed as we always have, trusting that informed people out in the world, as we certainly want our judges to be, tend to have opinions on most things of importance. And they also have a commitment to enforcing the law which is subject to close scrutiny, and if found wanting, they can be impeached. Their degree of objectivity is on record, and if it turns out to be a good record, then we trust that they are more likely than not to be applying their standards in the case at hand. The first thing Eastman should have done before suggesting bias on Walker’s part is examine the three decades of Walker decisions. Curious that no mention of his record was mentioned.

I’m not faulting Eastman for raising the question, even if it comes late and isn’t without bias itself. I’m suggesting that Walker worked on the same honor system all judges are expected to work on. He would have recused himself if he had doubts about his own ability to be objective. The proof is in the decision, not a word of which includes the kind of baseless assertions which characterised the defence’s case.

Furthermore, Judge Walker’s decision was not made in a vacuum. The claim of the uninformed that he “single-handedly overturned the will of 7 million California voters,” ignores the fact that it’s precisely the job of a federal district court judge to overturn the will of voters if he determines logically and carefully and openly and with documented evidence that the voters have not acted within the framework of the Constitution. Not only should he not be faulted for doing his job; he should be commended for doing such a good one. Which is what the American Bar Association just did. And as the democratic politicians running for office in the next election in California just did. And as the republican governor of the state just did.

It’s hard enough to fight off the waves of ipse dixit claims, claims from those folks who make a “because I said so” assertion and expect it to stand while a counterclaim based on facts and evidence should be swept away. Now these same folks are sending in the troops for the ad hominem attacks.

America’s Culture War is a war on multiple fronts. The right of same-sex couples to marry has multiple dimensions. One set of questions is philosophical. How do we prioritize religious traditions in a secular state? How do we know which of our traditions are worth maintaining and which have lost their foundation through new knowledge and the reframing of values? Another dimension is moral. How do we treat minorities? How do we prevent the tyranny of the majority? Still another is political. How do we grant power to judges? How do we interpret the Constitution and retain a balance of power in our three branches of government?

The issue at hand is the legal dimension. How do we assess and enforce neutrality? How do we assure that the law functions as it should when a significant portion of the public seems to have forgotten what they once learned in civics classes? Or never learned because we no longer teach civics in schools? How do we know when the law is working? Which leads us back to the philosophical questions. How do we conceive neutrality? How do we know which of our religious leaders (if any) to listen to for advice on the meaning of life? And which legal professors to listen to when the law is open to interpretation and cases are not about justice necessarily but about the rules of process?

I admitted at the beginning that I have no more objectivity here than those attacking Judge Walker ad hominem. I don’t have the kind of certainty those of fundamentalist religious faith claim to have.

What I do have is a conviction that people who engage in discourse with an open mind, and a lack of fear over where they might end up, reach better conclusions than those who start and end with ideology. I, for one, will not fling things at Professor Eastman for asking questions. As long as he doesn’t mind my asking things like why he appears so often on Fox News and less often elsewhere. Or why he clerked for Justice Thomas. Or why he focused on Walker the man rather than the legal decision itself. Or whether the fact that it is a Christian college that pays his salary affects his opinions?

In the meantime, let’s hear it for ongoing open-ended discussion. And for our secular American legal system and its conservative judges who on occasion make liberals happy when they think that's what the law requires of them.