I think Judge Ware made the right call upholding Judge Walker’s decision in the Prop. 8 case. We can’t be disqualifying judges just because their rulings will have some sort of generalized impact on their own lives. (For a contrary point of view, see here.) If we did that, no judge could hear any case and any sort of judicial system involving human beings would become an ethcial impossibility.
Every ruling that any judge makes potentially has an impact on her life. For instance, should she impose a short, medium, or long sentence to a defendant convicted of a violent crime? She has no idea if that criminal, once paroled, will find her and do her or her family harm — and a lot of criminals harbor resentment towards the judges who sentence them. On the other hand, a long sentence imposes a higher financial burden on the taxpayers, to keep the prisoner locked up for longer, which could contribute to the judge’s taxes being raised. But someone has to sentence the criminal, and the truth of the matter is that the judge is not appreciably more likely than any other citizen to be guilty of recidivism and the judge’s taxes are charged at the same rate as any other citizen. The burdens, benefits, and risks that the judge will personally feel from making that decision are the same burdens, benefits, and risks that the judicial decision would implicate to any judicial officer.
Unstated in Monday’s arguments — again, this argument was not made and indeed specifically disclaimed by the intervenors in their motion — is that Judge Walker ruled the way he did simply because he is gay and therefore would want to make a “pro-gay” decision absent any particular desire on his part to personally take the benefits of the ruling. Here, of course, we’re back to the claim that a black judge shouldn’t decide a civil rights case or a woman judge shouldn’t decide a gender discrimnation case or an atheist judge shouldn’t decide an Establishment Clause case.
To take the first example — a black judge may empathize with a plaintiff who proves she was the victim of anti-black discrimination in a way that a white judge would not, but at the same time she will take a particularly dim view of a plaintiff who claims to have been discrimnated against but really wasn’t, in a way that a white judge would not. The plaintiff and the defendant still have to prove their respective cases and do so in a convincing way. That’s a fair cop to both sides, which means that the argument about a judge being a member of a particular minority group making the judge prejudiced does not hold water.
As important as that, the claim itself is calculated to exclude entire categories of people from serving as judges. By virtue of the color of their skin, the set of reproductive organs they own, the set of reproductive organs they prefer to interact with in the privacy of their own homes, the form of their relationship to the supernatural, or whatever other immutable and irrelevant characteristic about themselves you could name that might be implicated in a trial, the argument discrimiantes against the group in question. Aside from being inherently offensive, the argument is specious. Judge A. Leon Higginbotham, Jr. smartly refuted this notion more than thirty-five years ago, in Pennsylvania v. Local Union 542, Int’l Union of Operating Eng’rs, 388 F.Supp. 155, 165(1974):
…[A] threshold question which might be inferred from defendants’ petition is: Since blacks (like most other thoughtful Americans) are aware of the “sordid chapter in American history” of racial injustice, shouldn’t black judges be disqualified per se from adjudicating cases involving claims of racial discrimination? Defendants do not go so far as to precisely assert that black judges should per se be disqualified from hearing cases which involve racial issues, but, as will be demonstrated hereinafter, the absolute consequence and thrust of their rationale would amount to, in practice, a double standard within the federal judiciary. By that standard, white judges will be permitted to keep the latitude they have enjoyed for centuries in discussing matters of intellectual substance, even issues of human rights and, because they are white, still be permitted to later decide specific factual situations involving the principles of human rights which they have discussed previously in a generalized fashion. But for black judges, defendants insist on a far more rigid standard, which would preclude black judges from ever discussing race relations even in the generalized fashion that other justices and judges have discussed issues of human rights. Under defendants’ standards, if a black judge discusses race relations, he should thereafter be precluded from adjudicating matters, involving specific claims of racial discrimination. [¶] To suggest that black judges should be so disqualified would be analogous to suggesting that the slave masters were right when, during tragic hours for this nation, they argued that only they, but not the slaves, could evaluate the harshness or justness of the system. (Footnote omitted.)
The argument is inherently offensive and inherently discriminatory. It’s offensive that the argument was even made and it’s no wonder the intervenors not only backed off from actually articulating it but affirmatively disclaimed it. Nevertheless, that argument is a necessary implication of the argument they did make.
The generalized interest of the judge as a member of society in the outcome of a decision is not a proper basis for recusal. Judge Walker’s interest in the outcome of the Prop. 8 case was the same as that of any other citizen.
So when we’re talking about judicial impropriety, what we must be looking for is whether the decision will have some specific impact on the judge in question, something particularized to the individual holding the decision-making power, something special or unique to that judge that distinguishes this judge from everyone else in society generally. The claim was that Judge Walker stood to benefit specially from the Prop. 8 ruling, because as an unmarried homosexual man in a committed, long-term relationship, he might have wanted to have got married to his partner himself, something that Prop. 8 would have prohibited him from doing, so he stood to gain a special benefit.
I don’t particularly see that, either. If Judge Walker and his partner had wanted to get married, they could have done so in the five-month window of time between the decision in The Marriage Cases and the passage of Proposition 8. 14,000 couples leapt at the opportunity to get married and used that window — and with only a few exceptions, they are still married today. Judge Walker and his partner could also get on a plane and got married in New Hampshire, or Iowa, or Vermont, or Massachusetts, or Connecticut, or Canada, or any of a number of European countries, and have a nice litle honeymoon built in to the wedding (these are men in high-income occupations, so presumably they could afford that sort of thing). If they wanted to be married they would have got married already. If they didn’t want to get married at the time it was legal in California but then changed their minds and really really wanted to be married close to home, now we’re getting into several levels of speculation when it isn’t even clear that the judge and his boyfriend are even mutually interested in changing the living arrangements they’ve had for the past ten years or so.
So the intervenors failed to demonstrate anything that would lead a reasonable person to think that Judge Walker, personally, was going to get married on the strength of his own ruling. The reasonable person looks at the motion and sees the intervenors arguing: “Hey, he’s gay! Who knew?” (On the D.L., everybody did, but that’s a different story.) “He should have said he was gay and disqualified himself from deciding this gay rights case!” That was the real argument they were making, and it doesn’t hold water. It was rightly rejected and the Ninth Circuit will give that same argument the same response.
Aside from the discriminatory impact, I think the fundamental issue with saying that a gay judge can’t rule impartially on gay marriage is flawed for a simple reason of logic. Opponents of gay marriage argue that gay marriage is harmful to straight marriage. If that’s the case, then if gay judges should recuse themselves because they stand to gain by allowing gay marriage, then by the same logic, straight judges should recuse themselves because they stand to gain by disallowing gay marriage.
This is the problem with all class-based arguments for recusal. If class A has a class-based bias for some outcome by virtue of that outcome benefiting their class, then so to, all other classes have a bias for a different outcome.
The simple solution is to have only eunuchs or asexual judges rule on these cases. Problem solved.
Or professional celibates, such as the most prominent critics of birth control.
As has been pointed out, it’s usual to raise these objections against judges who are black, female or of a minority ethnic group/minority religion.
By this standard, for example, is there any judge on SCOTUS who could hear such an appeal? Or rule on racial/sexual discrimination?
I look at it this way. Antonin Scalia is a Catholic, a man who takes his Catholicism seriously, walking the walk as well as talking the talk. Catholicism condemns homosexuality as a moral error. As a judge, he has stuck his neck way out against the academic establishment, popular press, and prevailing cultural trends to insist that the case of Bowers v. Hardwick, which affirmed a Georgia criminal prosecution for sodomy, was not only constitutionally permissible but morally right. So does anyone at all have the slightest doubt how Justice Antonin Scalia is going to rule on the Prop. 8 case when it inevitably gets before the Supreme Court? Even the tiniest, tiniest bit?
Of course not. Scalia is going to say that California can pass Prop. 8 if it wants to, that the Equal Protections Clause does not apply to homosexuals, that marriage is a traditional state issue on which the Equal Protections and Due Process clauses are silent, and that there is no such thing as substantive due process and for all these reasons, the right result in the case would have been to affirm Prop. 8. And it’ll have some vicious moments along the way, particularly aimed at Justice Kennedy — some of them may even be funny as well as vicious. Everyone who has been paying the slightest bit of attention to his jurisprudence for the past quarter century that he’s been on the bench knows this with the certainty that they know the sun will rise in the east tomorrow.
That doesn’t mean Scalia is prejudiced or shouldn’t participate in the case. It means he’s got his approach to interpreting and applying the constitution, even if we don’t agree with it. The opinion he’s going to write, which I just outlined for him above, is going to be based on the law and the facts of the case before him, which as he sees it only happens by a pleasant coincidence to exactly align with his personal preferences. But if he’s making credible legal arguments, if he’s addressing the case on its merits, we can’t assume that because he reaches the result he does, that he didn’t go about deciding it fairly.
The fact that he is a devout Catholic, who has gone out of his way to point to the moral and legal correctness of Bowers v. Hardwick and let it be known that he believes that a state can and should criminalize homosexual conduct, is not a good reason to say he cannot sit as a judge in this case. His pleasure in seeing Prop. 8 reinstated into the California Constitution (if that is the result of the case) will be an abstract and generalized pleasure, one which will not affect his own personal interests in any tangible way. So he has no conflict of interest, there is no appearance of impropriety, and it is appropriate for him to hear and rule on the case.
I say this despite my bet-the-farm-on-it certainty that he will rule as described above, and write an opinion that I will likely personally evaluate as close to obnoxious.
Mr. L, that’s not Scalia. He simply says societies and polities can legislate their morality and have every political right to. This is not radical or radically conservative political theory.
I’ve been linking to Scalia’s 2006 AEI speech as the best example of his thinking I’ve heard. I’ve dug it out for you from the Wayback Machine [website is dead] because you’re one of the few who’s worth investing the effort in.
http://web.archive.org/web/20080116061700/http://www.joink.com/homes/users/ninoville/aei2-21-06.asp
That was a bigass compliment. BTW, I’m a headhunter for lawyers here in SoCal. We could do some beers and I could write it off. of course your identity would remain secret. Headhunters are profession secret-keepers.
Anyway, the pregnant Ninoisms below. I have much to say, but better he be permitted to speak for himself—which seldom happens anywhere on the internet: his thought is caricatured, and understood by few. Here he rejects natural law as a juridical foundation—and if you reject even natural law, you certainly reject the Roman church’s interpretation of it. Your criticism and objection is unfair in my view, and Scalia is aware of it and addresses it. Enjoy:
Recently, the Court has expanded the use of foreign law beyond the area of the eighth amendment. In Lawrence v. Texas [539 U.S. 558], the Court relied upon action of the British Parliament and a decision of the European Court of Human Rights in declaring that laws punishing homosexual conduct were unconstitutional under the American Constitution. And, of course, individual Justices have urged the relevance of foreign law in other cases as well.
I expect, or rather, I fear, that the Court’s use of foreign law will continue at an accelerating pace. I think so for three reasons.
First, because the “living constitution” paradigm for the task of Constitutional interpretation prevails on the court, and indeed, in the legal community generally. Under this view, it is the task of the court to make sure that the current constitution comports with as we have put the point in the Eighth Amendment, “the evolving standards of decency that mark the progress of a maturing society.” Thus, a constitutional right to an abortion, which assuredly did not exist during the first few centuries of our country’s existence, does exist today. Likewise, a constitutional right to homosexual conduct. Of course, I disagree with this living constitution approach, but that is not my purpose here today, to debate originalism. But rather, my point is that, once you assume the power to revise the constitution to keep it up to date, then the criticism voiced by the court in Printz, which I quoted earlier — that “we think such comparative analysis inappropriate to the task of interpreting a constitution, though it was of course quite relevant to the task of writing one” — no longer has any bite: you are engaged in the process of writing a constitution, and thus there is no reason whatsoever not to consult foreign materials in doing so!
I suppose it could be argued that you can be a living constitutionalist who wants to create only a new American constitution – sort of a living constitutionalist who doesn’t care what foreign countries think, but wants to update the American Constitution according to the contemporary mores of Americans. Well, that’s certainly a possible position, but it is not, however, one that I think is likely to prevail, because I do not think very many living constitutionalists are likely to be what you might call “chauvinistic living constitutionalists” – that is, dedicated to effecting only those changes that the American people desire. The American people can make their will well enough known by creating new rights legislatively, or in the last analysis by amending the Constitution per Article V. One who believes that it falls to the courts to update the list of rights guaranteed by the constitution tends to be one who believes in a platonic right and wrong, which wise judges are able to discern when the people at large cannot. In fact, it has occurred to me that this notion of an overarching moral law that is binding upon all of the nations of the world — and with which all the judges of all of the nations of the world are charged with interpreting — has replaced the common law. Those of you who are lawyers will remember that, in the bad old days, that is to say, before Erie RR v. Tompkins [304 US 64, 78 (1938)], the courts believed that there was a single common law, it was up there in the stratosphere. Now, the state courts of California said it meant one thing, the state courts of New York said it meant something else, and the Federal Courts might say it meant a third thing. But one of them was wrong! Because there really is a common law, and it’s our job to figure out what it is. So in those days, any common-law decision of one state would readily cite common-law decisions of other states, because all the judges were engaged in the enterprise of figuring out the meaning of what Holmes called “the brooding omnipresence in the sky” of the common law. Well, I think we’ve replaced that with the law of human rights.
Which is a moral law, and surely there must be a right and a wrong answer to these moral questions — whether there’s a right to an abortion, whether there’s a right to homosexual conduct, what constitututes cruel and unusual punishment, and so on — surely there is a right and wrong moral answer. And I believe there is, but the only thing is, I’m not sure what that right answer is. Or at least, I am for myself, but I’m not sure it’s the same as what you think. And the notion that all the judges in the world can contemplate this brooding omnipresence of moral law, cite one another’s opinions, and that somehow, they are qualified by their appointment to decide these very difficult moral questions . . . It’s quite surprising to me, but I am sure that this is where we are. There really is a brotherhood of the judiciary who indeed believe that it is our function as judges to determine the proper meaning of human rights, and what the brothers and sisters in one country say is quite relevant to what the brothers and sisters in another country say. And that’s why I think, if you are a living constitutionalist, you are almost certainly and internationalist living constitutionalist.
The second reason that international law is likely to be used increasingly in our living constitution decisions is Sir Edmund Hillary’s reason: because it’s there. Let’s face it: it’s pretty hard to put together a respectable number of pages setting forth, as a legal opinion is supposed to, analytical reasons for newly imposed constitutional prescriptions or prohibitions that do not at all rest — as the original bill of rights did not at all rest — upon logical or analysis, but rather upon one’s moral sentiments, one’s view of natural law, one’s philosophy or one’s religion. How to explain logically and analytically why government regulation of sexual freedom by rendering bigamy or adultery or incest a crime is perfectly constitutional, while its limitation of sexual freedom by making homosexual conduct a crime is not. Decisions on such matters, whether taken democratically by society or undemocratically by courts, have nothing to do with logic. So without something concrete to rely on, judicial opinions would be driven to rely on such philosophic or poetic explanations as “[a]t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” [Planned Parenthood v. Casey, 505 U.S. at __; quoted in Lawrence, 539 U.S. at 574]. Surely, not a happy state of affairs for a law court. It will seem much more like a real legal opinion if one can cite authority to support the philosophical, moral or religious conclusions pronounced, and foreign authority can serve that purpose. You can cite the name of the case, and look, it has letters and numbers after it, it’s “33 Uganda Law Reports” whatever, and — [laughter] — it looks very legal.
I’m happy to meet you for a beer, TVD. Shoot me an e-mail; work takes me down to L.A. a fair amount these days.
write an opinion that I will likely personally evaluate as close to obnoxious.
And that Thomas will join in it, writing at most two sentences of his own.
I’m willing to accept that the arguments you make would apply and are persuasive if the “unstated argument” you set out is in fact “a necessary implication of the argument [the intervenors] did make.” But I don’t see how it is, and thus neither the analogy nor the other arguments hold up, in my view. The argument is not that Judge Walker ruled based on his “generalized interest of the judge as a member of society in the outcome of a decision,” as you claim. That is, it is not that “Judge Walker ruled the way he did simply because he is gay and therefore would want to make a “pro-gay” decision.” Instead, the argument is that there is at least a prima facie basis to suspect he has some “particular desire on his part to personally take the benefits of the ruling” – i.e., to wed his longtime gay partner. Thus, if we insist on drawing analogies to race, we might say it would be like claiming a black judge should not rule on the validity of Section 8(a) of the Business Development Program administered by the U.S. Small Business Administration – a law giving racial preferences to racial minority business owners – where the judge’s close relative is a racial minority business owner. This analogy is quite a bit closer (though, like any analogy, not precisely 1-to-1), and presents a sound basis for recusal.
As to Judge Walker’s specific legal interest in marrying his long-term gay partner, true, he probably could have wed in the five months between In re Marriage Cases and Prop 8. He also could marry in a different state or country. But I disagree that these circumstances demonstrate he no longer has an “interest that could be substantially affected by the outcome of the proceeding.” 28 U.S.C. § 455(b)(4).
Also, I want in on beers!
I don’t understand how this kind of thinking can withstand the simple complaint of a double-standard.
And it’s quite possible that Judge Walker doesn’t want to get married, and is unselfishly throwing away an ironclad answer to his partner’s “Why not?”.
Let’s consider a universe of seven possible judges:
Judge T — asexual.
Judge U — gay and married (married her wife in the 5-month “hammock” period between the Marriage Cases and Prop. 8).
Judge V — straight and married.
Judge W — gay, in LTR.
Judge X — straight, in LTR.
Judge Y — gay, single.
Judge Z — straight, single.
Who among this panel of potential judges can properly hear the Prop. 8 appeal? When we consider that an argument advanced by the proponents was that same-sex marriage has a negative impact on opposite-sex marriage, does that alter the universe of available judges?
Burt,
Seems we’re basically dealing with two issues, one specific and one general. The first issue concerns whether gays are entitled to an individual right to marry a same-sex partner and to obtain further specific legal rights pertaining thereto (e.g., tax advantages, community property rights, hospital visitation, etc.). The second issue is whether same-sex marriage generally harms traditional marriage. That issue fundamentally concerns policy and does not involve specific rights or legal interests.
To make things more clear, we might consider the analysis in determining whether a judge ought to recuse himself in the matter of the validity of a setback ordinance. If the judge owns property that is affected by the ordinance, he has specific rights and interests at stake—e.g., the ordinance will decrease the amount of land he may develop and thereby decrease the value of his property. However, if the judge does not own property specifically affected by the setback but instead merely stands to be generally impacted as a member of the public, such as by the aesthetic effect of the ordinance, no conflict could be said to arise. We might even say that in this second instance, the judge, in his individual capacity, would have no standing with respect to any impact the law might have on him. Thus, it could not be said he should have to recuse himself from deciding the legal question before him.
As for your question, seems to me Judge W (hmm…for “Walker”?) is the only one who might have to recuse himself.
Likewise, in considering whether a citizen can be detained, imprisoned and tortured for being a member of a political party other than that of the current administration, all judges that are not members of that party must recuse themselves; only members of the president’s party can consider thew question objectively without considering their own situation.
If it’s a setback ordinance, then I agree a judge who does not own property affected by the ordinance may properly rule upon its validity. Such a judge has the same rights to buy property as anyone. But the fact that the judge might want to buy some property that might be affected by the ordinance, at some point in the indeterminate future, is not enough of an interest to disqualify him.
Similarly, the fact that a judge who is not married and has given no indication of wanting to be married, is disinterested in a decision about the validity of a law governing who can or cannot be married and therefore may appropriately rule on that issue. If Judge Walker had been engaged to be married; if he and his boyfriend had been planning a wedding when Prop. 8 went down, then I might look at this the way I would look at a judge who owned property potentially subject to a setback ordinance.
Burt, that’s problematic, though. By the logic of the proponents off Prop 8, I, as a straight married person, have more than a general interest in sustaining Prop 8. They argue that the institution of marriage (to which I currently belong) is harmed by allowing gays to enter. Having read your previous coverage of Prop 8, I know that you are opposed to it, and therefore find this argument to be incorrect, but that’s beside the point.
Using your analogy, I already own property impacted by the ordinance. if Judge Walker would be required to recuse himself because he wants to buy said property, I certainly should recuse myself because this ordinance would force me change the universe of possible purchasers against my will.
I’ll shoot you an e-mail next time I’m down in the O.C. and we can have that beer. Deal?
Messrs. Likko & Kowal, mine is esqtvd at aol. Hit me up.
I have a lingering suspicion that one of these days I am going to want to take a TLoOG road trip. Swing by LA, Colorado, Arizona, and make my way out to Kentucky, and have a lot of beer with a lot of folks.