Prop 8 Judge Walker is Gay, But Not Biased A daily look at legal news and the business of law:

Bias vs. Bias: Judge Walker Is Gay -- and Conservative


In the wake of federal Judge Vaughn Walker's ruling that California's Proposition 8 gay marriage ban violated the U.S. Constitution, gay marriage opponents haven't attacked the judge's reasoning: Instead, they've attacked the judge. Judge Walker is gay, and Prop. 8 supporters now suggest that his sexual orientation means he was so biased that their side never had a chance. However, it's worth noting that the gay marriage opponents never asked Judge Walker to recuse himself, as they had the right to do if they believed he was biased, which somewhat undercuts the charge now.

As I wrote in a DailyFinance column some months ago, research does suggest that race and gender can have a meaningful impact on judicial outcomes. Of course, assuming that those different outcomes are "wrong" means that the law has a white male bias. If most judges were black or women, we'd note that white men sometimes had different results from the average, too. Nonetheless, it's not unreasonable to imagine that being gay had some influence on Judge Walker's thinking.

However, a major influence on judicial decision-making that everyone takes for granted is the political philosophy of the president who nominated the judge in the first place. Republican presidents generally nominate more conservative judges than Democrats do. "Elections have consequences," as Sen. John McCain once famously quipped.

Judge Walker was first nominated by President Ronald Reagan, and was confirmed after re-nomination by President George H.W. Bush. Indeed, the Senate rejected Walker when Reagan nominated him because he was seen as too conservative. Presumably being gay and being a Reagan/Bush nominee would be seen as opposing biases that would tend to cancel each other out in this case.

Ultimately, there's only one way to spot judicial bias: Look at the decision. Is the reasoning sound and supported by the record? In this case, the answer is a clear yes.

Kagan Confirmed as a Supreme Court Justice

Elena Kagan was confirmed Thursday by a 63-37 vote: Five Republicans voted for her, and one Democrat against, but every other vote was along party lines. Although Kagan is not expected to shift the court's ideological balance much, her confirmation is potentially transformational in other ways: She makes the court one-third female for the first time, and is the court's only member without a judicial background. Moreover, her youth suggests Kagan will have the opportunity to shape the court over time.

Kagan is no stranger to the other eight justices; besides knowing them through her job as the solicitor general, she has a long and warm friendship with Justice Ruth Bader Ginsburg. In the days just before the confirmation vote, the U.S. Chamber of Commerce chose to neither support nor oppose her. That's interesting, because the Chamber rarely does that: It officially supported almost all the other current justices. And although as solicitor general, Kagan opposed the Chamber's position nine out of 10 times, the resulting losses for the Chamber came due to the votes of conservative Justices Antonin Scalia and Clarence Thomas.

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John/Kristine

If the judge were heterosexual would they expect him to recuse himself? How could someone not be seen as biased in this case?

August 08 2010 at 2:04 AM Report abuse +2 rate up rate down Reply
bossak

MY APPRECIATION OF THE FAIRNESS OF THE SENATORS HAS RISEN SHARPLY BECAUSE OF THAT VOTE

August 07 2010 at 11:55 AM Report abuse rate up rate down Reply
dcrosetti

The reasoning is not sound. The judge cited equal protection. He misinterpreted equal protection, in that everyone CAN get married, as long as they marry someone of the opposite sex. If you said that blacks, asians, and hispanics could not marry, then you would be denying them equal protection under the law. You would only allow white men and women to marry, but not other races. Therefore discrimination. There is no protection for two men or two women to marry, because it is not allowed now. Therefore, since no male-male can get married, there is no legal precedent to apply equal protection. The law discriminates against people all the time. The law does not allow you to drive a car without a license, even though a license only regulates your priviledge, but does nothing to make you good at it. Don't get me wrong, I personally don't care if gays marry or not. What concerns me is the reason the court used to overturn the California law. The court's argument (rationale) is faulty, but the judge knew he had no where else to go, so he pulled the rabbit out of his hat. It will be overturned by the Supreme Court if Kagan and Sotomeyer are telling the truth when they say they will uphold the constitution. We'll see. But, in the meantime this judge is no "hero." He is clearly an activist judge who sees his office as one that should make law, not interpret it.

August 07 2010 at 12:06 AM Report abuse rate up rate down Reply
MAURI

ONE MAN'S (JUDGE) RULING AGAINST MILLIONS EQUALS A DICTATORSHIP!

August 06 2010 at 11:05 PM Report abuse rate up rate down Reply
Meadhh

Well non-blacks, non-gays, non-hispanics and non-Moslems, we now know where we stand in Obama's judicial system. Helter Shelter has begun!!!! Our roles have reversed, we are now the minority and will be punished for our successes, wealth, self determination for our pursuit without entitlements!!!!!!

August 06 2010 at 4:28 PM Report abuse +2 rate up rate down Reply
1 reply to Meadhh's comment
cmdrhlamb

you keep tellin' yourself that.......karma is a b*tch......

August 06 2010 at 4:47 PM Report abuse rate up rate down Reply
lublinlaw

This case typifies the Obamanization of our judicial system. Where one's personal experience is considered an important part of picking a judge.

August 06 2010 at 4:02 PM Report abuse rate up rate down Reply
lublinlaw

I certainly wouldn't want a Klansman hear my case if I was black.

August 06 2010 at 4:00 PM Report abuse rate up rate down Reply
BUFFALO

Apparently this judge should of bowed out as that on its own makes the judgement invalid and maybe now it goes back to the 8th circut instead of the 9th circut court. Waste of time and money.

August 06 2010 at 3:29 PM Report abuse +1 rate up rate down Reply
1 reply to BUFFALO's comment
cmdrhlamb

there was no reason for the judge to back out....he was appointed by a republican president to serve as a judge.....had he not been gay and voted in favor of the ban, the gay peeps could challenge that as a "he should have recused himself, he's straight"....probably not, huh?........

August 06 2010 at 4:49 PM Report abuse rate up rate down Reply
stubit586

I think a straight man who had a sex change and is now living as a lesbian would be a good judge.

August 06 2010 at 2:02 PM Report abuse rate up rate down Reply
thomasva6

this gay thing--it's like when you have sex with animals and i vomit then you tell me i'm the weird one with the problem.....

August 06 2010 at 1:08 PM Report abuse +1 rate up rate down Reply
1 reply to thomasva6's comment
cmdrhlamb

that's alright.....they probably vomit upon thinking of you having sex ......

August 06 2010 at 4:50 PM Report abuse -1 rate up rate down Reply