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    Community Host Alissa_Sal's Avatar
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    http://www.slate.com/id/2296862/pagenum/all/#p2

    Long, sorry. Also, biased, sorry. But I thought that it was an interesting article nonetheless.

    Today, a court in San Francisco heard arguments about one of the most contemptible legal claims advanced in decades: that Vaughn Walker, the federal judge who voted last spring to strike down California's ban on gay marriage, was too gay to decide the case fairly.

    The claim brought by ProtectMarriage, the group that sponsored the 2008 ballot initiative, tries to shimmy around a direct assertion that Walker's homosexuality should disqualify him from having judged the Prop 8 case. They don't say that Walker, who retired from the federal bench last February following his Prop 8 ruling, is biased in favor of gay marriage because he is gay. Instead ProtectMarriage argues—see this April 25 motion to vacate Walker's ruling—that Walker, who has lived with his partner for 10 years, may have ruled for gay marriage so that he himself could get married and someday enjoy the benefits of marriage. The motion to vacate is thus rooted in their argument that "no judge is permitted to try cases where he has an interest in the outcome." And since "no one would suggest that Chief Judge Walker could issue an injunction directing a state official to issue a marriage license to him, yet on this record, it must be presumed that that is precisely what has occurred," his ruling, they insist, must be scuttled.

    The problem for the proponents of Prop 8 is that there is no evidence in their motion that Walker ever sought to marry his partner, despite the existence of a decade long relationship. So they rely instead on the argument that he is gay, and that's enough.
    Although rumors that Walker was gay had been floated—and largely ignored—at the start of the Prop 8 hearing, Walker confirmed, following his retirement, that he was in a committed relationship with another man. He added at the time that he never considered that a reason to recuse himself from the case.

    The hearing today took place in the courtroom of Chief Judge James Ware, who took over the Prop 8 case after Walker's retirement. Both were George H.W. Bush appointees. Ethics experts were quick and nearly unanimous in opining that this effort to overturn Walker's decision on the basis of his relationship is specious as well as desperate. No claim that a federal judge should have been barred from hearing a case because of race, gender, or religion has ever succeeded, a point made by California Attorney General Kamala Harris in her brief opposing the motion to vacate this ruling: "Just as every single one of the attempts to disqualify judges on the basis of their race, gender, or religious affiliation has been rejected by other courts, this Court should similarly reject Defendant-Intervenors' effort to disqualify Judge Walker based on his sexual orientation."

    Still, just because a legal argument is degrading and futile doesn't mean nobody will make it. For as long as there have been bigots in America, litigants have tried to argue that women are too womanly to decide gender cases and that Jews are too Jewish to hear cases involving the first attacks on the World Trade Center. Like ProtectMarriage, these litigants also have tried to dress up their claims as something other than pure bigotry. They never prevail.

    The federal recusal statutes provide that judges should be disqualified in cases in which they are actually biased, and also in cases in which their impartiality might reasonably be questioned. As Sherrilyn Ifill wrote in The Root, the effort to besmirch Judge Walker's integrity is eerily similar to earlier campaigns against black and female judges:
    In the late 1970s and early 1980s—as a bumper crop of minority federal district judges appointed by President Jimmy Carter presided over employment-discrimination cases brought under Title VII of the Civil Rights Act of 1964—recusal motions were filed by defendants seeking to remove black judges from hearing these cases. Black judges pushed back firmly against attempts to question their impartiality and framed what has become the universally accepted understanding among the bench and bar: that judicial bias cannot be assumed based on the racial, gender or other status of the judge.

    -----Snip--------(you can read the rest at the link)
    So this was thought provoking to me. Do you think that judges are truly able to set aside their own "affiliations" when they hear a case, or do you suspect that they may have underlying biases? Does it matter what the affiliation is? For example, if you do think that this judge should not be ruling on the case because he is gay, would you feel the same if it went the other way? For example, what if instead of being gay, he was a conservative Christian? What about the other examples given, such as women ruling on gender cases, and black judges ruling on race cases?
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    Community Host wlillie's Avatar
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    Do you think that judges are truly able to set aside their own "affiliations" when they hear a case, or do you suspect that they may have underlying biases?

    They may have underlying biases, but I think most of them are able to overcome that to make the decision they know is right.


    Does it matter what the affiliation is? For example, if you do think that this judge should not be ruling on the case because he is gay, would you feel the same if it went the other way?
    For example, what if instead of being gay, he was a conservative Christian?


    Nope. Even if a conservative Christian made this ruling, I think people would still be pulling the same stunts with different tactics. To me, as long as they aren't blatantly making decisions that can't be reconciled with the law, there shouldn't be this much of a question as to whether their decision stands.

    What about the other examples given, such as women ruling on gender cases, and black judges ruling on race cases?

    We are fighting as a nation to get rid of discrimination. Why on Earth would we start discriminating against those whose job it is to decide what is legal and what isn't?

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    Posting Addict Spacers's Avatar
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    I trust that our federal and superior court judges, who must have a minimum of 10 years experience as a practicing attorney and must be vetted by a Judicial Ethics committee before appointment or election, are capable of setting aside their personal beliefs and looking at the law. If they can't or don't, they can be disciplined and/or removed from office and/or have their rulings overturned. Those things don't look good on a resume, so who would want to go there in the first place?

    The argument that Judge Walker was biased because he is gay and therefore would benefit personally from his decision is ridiculous. I just took a state ethics training, and one of the places where a conflict of interest doesn't exist is when it benefits the population as a whole, and you are just of the masses. Under the anti-8 argument, the only person who could judge this case is someone who has never been married, is not currently married, and who will never be married in the future for reasons other than religion. Everyone else has a stake in the decision or a potential bias.

    Also, same-sex marriage was legal in California for a period of time, during which Judge Walker & his partner could have been legally married just as Ellen DeGeneres & Portia DeRossi were. Or they could travel to Massachusetts, Connecticut, Iowa, Vermont, or New Hampshire and be legally married. They didn't get married when they had the chance in California, and they haven't travelled to another state to get married, which seems to indicate that perhaps they aren't interested in marriage.
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    Community Host Alissa_Sal's Avatar
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    Stacey and Lillie - I agree. The tangent that it got me thinking about is how much debate exists over the appointment of Supreme Court Justices. All of the grandstanding and hand wringing when Bush appointed Alito, and then when Obama appointed Sotomayor. The implication is that the current administration will appoint a judge that is "sympathetic" to their policies. I know that one of the big questions about Alito is whether that was a step towards overturning Roe v. Wade. But if we agree that a good judge will not be biased, then that kind of renders all of the debate over the Supreme Court justices to be a little moot, and a little insulting to the appointees. Thoughts?
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    Posting Addict Spacers's Avatar
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    There are several arguments in favor of very carefully screening SCOTUS justices that don't apply to federal or superior court judges. One is that SCOTUS justices serve for life, without any routine review. Another is that SCOTUS is the last resort to make sure that all the other judges in the country are doing their jobs right. I think especially in instances where a judge has said something on the record like they aren't just personally pro-life but that they believe all abortion should be illegal, or that they believe all gun laws to be unconstitutional, it's wise to give them a second & third & fourth look before appointing them for life. Those kinds of statements indicate someone who might have a propensity to ignore the law in favor of their own beliefs. It happens, no doubt, but I think/hope/believe the vast majority of judges are trying to do the right thing by upholding good laws & dismissing bad ones.
    Last edited by Spacers; 06-14-2011 at 03:20 PM.
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    Arguments like the one in the article are frankly stupid. They assume that straight, white, Protestant men are the null and anyone else is the exception and biased. I would love to hear someone defend such a claim. As an aside, ProtectMarriage as a group is an embarrassment.

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    Posting Addict Spacers's Avatar
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    Not surprisingly, this challenge was rejected this afternoon:

    (06-14) 13:53 PDT SAN FRANCISCO -- The federal judge who overturned California's ban on same-sex marriage last year was not obligated to disqualify himself from hearing the case because he was in a long-term relationship with another man, another federal jurist ruled today.

    Sponsors of the voter-approved 2008 ban offered no evidence that then-Chief U.S. District Judge Vaughn Walker had planned to marry his partner and can't rely on mere speculation to show that he had a conflict of interest, said James Ware, who succeeded Walker as chief judge and inherited the case.

    The fact that a judge is in a relationship doesn't necessarily mean he is "so interested in marrying the person that he would be unable to exhibit the impartiality which, it is presumed, all federal judges maintain," Ware said.

    A gay judge is entitled to rule in a gay-rights case, even if his ruling could provide him "some speculative future benefit," Ware said.

    The contrary argument by Walker's opponents, he said, would require "recusal of minority judges in most, if not all, civil rights cases."

    Walker ruled in August that Proposition 8, which amended the state Constitution to define marriage as the union of a man and a woman, discriminated unconstitutionally on the basis of sexual orientation and gender.

    Sponsors of the measure have appealed his ruling. They also sought to have the decision overturned by arguing that Walker should have removed himself from the case, based on his disclosure in April after retiring from the bench that he was in a 10-year relationship with his partner.

    Walker has not said whether they plan to marry. Prop. 8's backers argued that the public was entitled to presume that the judge intended to wed his partner, taking advantage of his own ruling, unless he expressly denied it.

    Ware rejected that argument today and said Walker had no duty "to disclose information about his personal life."
    http://www.sfgate.com/cgi-bin/articl...#ixzz1PHzQoiuU
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    Quote Originally Posted by Spacers View Post
    Not surprisingly, this challenge was rejected this afternoon:

    Good! When I read about it this morning it just amazed me that someone could even make that argument.

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    Posting Addict culturedmom's Avatar
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    Quote Originally Posted by CalBearInBoston View Post
    Arguments like the one in the article are frankly stupid. They assume that straight, white, Protestant men are the null and anyone else is the exception and biased. I would love to hear someone defend such a claim. As an aside, ProtectMarriage as a group is an embarrassment.
    Can't say it any better!

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    I agree that it was silly for them to try and say that he couldn't make a competant ruling on this decision.

    I do disagree, though, on you saying that ProtectMarriage is an embarrassment. I am all for gay rights and even though I don't agree with their lifestyle due to my religious beliefs, I believe that they should have every exact and same right that everyone else does... with the exception of this word "marriage" and the "paper" that comes with it. I believe in civil unions, letting them file taxes as a family together, and everything else that a married couple has and can do... just without the title. I believe that the definition of "marriage" is a union between a man and a woman, and should not be changed.
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