If a judge in a committed same-sex relationship should recuse himself from this case because of his assumed bias, then logic demands that judges in committed heterosexual relationships also recuse themselves, as they might be biased as well.Jeremiah Flanigan of Long Beach does get the point.
Erwin Chemerinsky, dean of the UC Irvine law school, argues that requiring U.S. District Judge Vaughn R. Walker to have recused himself from the gay marriage case based on his ongoing same-sex relationship would be like arguing that "black judges cannot decide race discrimination cases or female judges preside over cases involving sex bias."Jon Phillips of Torrance has a suggestion.
Indeed, a black judge should not preside over a case in which the issue would be that blacks cannot be judges, and a female judge should recuse herself if the issue were that females cannot be judges. However, that is a far cry from arguing that they should not decide cases involving general race or sex-discrimination questions. Here, the issue would directly determine whether Walker could marry his partner.
There should be a very simple rule with all articles related to Proposition 8. Replace the term "gay" with "black" and the term "marriage" with "segregation."Sounds great to me. Let's try it:
Neither two [black] men, nor two straight men should be able to get a license from the state to [segregate].
Thanks, Mr. Phillips!
What part of this do neutered marriage advocates not understand?
ReplyDeleteLet me ask a couple questions here.
Suppose that Thurgood Marshall had been on the Supreme Court at the time that Loving vs. Virginia was decided (I believe he was appointed just after it was decided). A lot of those who are attacking Project Marriage's filing against Judge Walker are asking, basically, whether Marshall would have been required to recuse himself merely because he was black.
The answer to that is no.
But what if Marshall, at the time that the case was being argued and decided, was in a romantic relationship with a white woman?
Would that not have been grounds for recusal?
Even if he had not yet stated that he had hoped to marry her?
I fully agree with the decision in Loving. Still, I have no qualms about saying that in the above scenario, Marshall (or any other justice, black or white, at the time in a romantic relationship with someone of another race) should have recused themselves.
Does anyone disagree? Please state why.
Also, does anyone disagree that if Judge Walker had actually stated plans to "marry" his partner, this would have been clear-cut grounds for recusal? (Still noting, of course, that recusal is required not just when a self-interest in the outcome is obvious, but also when there is the appearance of self-interest).
If not, why not?
Please also note (though it shouldn't even be necessary to point this out) that to say something is grounds for recusal is NOT saying that that something is "bad".
ReplyDeleteGood blogpost PW. And good comments RK.
ReplyDeleteI'll add the point that Walker hid his relationship. He thus denied the competing litigants (both sides) the opportunity to waive obkections. That weighs heavily against his duty as an officer of the court to ensure a fair trial.
It is plausible that the ant-8 side might have objected to Walker simply because they might have removed the potential for his part in this litigation to be used as cause to vacate. Olsen's team are now cornered into defending Walker's hiding something that Olsen now claims to be irrelevant.
If irrelevant why deny the opportunity to waive objections?
Also if the defenders of the CA marriage amendment had waived objections, that might have helped Olsen to defend Walker and his part in the case. And if the Cooper team had exercised the perogative to object, then, that could have played into the political game of showmanship that some SSMers have now rushed to play defensively instead of taking the offense.
So Walkerhid something that now further splits the leaders of the SSM campaign and put the Olsen team on thedefensive.
Walker brazenly messed up and now he and his defenders hope to brazen it out bitterly.