[Guest post by Aaron Worthing; if you have tips, please send them here. Or by Twitter @AaronWorthing.]
Strap yourself in, because this is a long one—with original reporting!
You might remember that Judge Vaughn Walker is the judge who sat in the Proposition 8 case, which held the newly amended provision in California’s Constitution limited marriage to straight couples to be unconstitutional. And you might remember there were reports that he was gay that surfaced late last year. Patrick wrote about the issue here. And I wrote about it, here. I will quote myself because a lot of you were not exposed to my opinion the first time, and I think I could really put myself reasonably close to being in the judge’s shoes:
Look let me personalize this. So let’s take an example: Loving v. Virginia. That was the case that said that laws banning interracial marriage were unconstitutional. That’s right, the case where they struck down tested the legality of “miscegenation” laws was called LOVING v. Virginia. How perfect was that for a name? It was like as if it was the state of Virginia opposed to people loving each other.
Now in fact it was about a couple with the last name “Loving.” I remember off hand that the wife was named Mildred, a black woman. Her husband was white, but I forgot his name. They had gone into Washington, D.C. to marry, and then came back to Virginia. The cops busted in on them, and arrested them. The law in Virginia made it a crime to leave Virginia, get married outside of one’s “race” and then return to the state, if you intended to do that all along.
So that probably means that first it went through the state Circuit Courts here in Virginia, or maybe the District Courts first if the punishment was minor enough. Then it probably went straight to the Supreme Court of Virginia, and from there was appealed to the United States Supreme Court. I mean I suppose it is possible to have gone the habeas corpus route, but I doubt it.
So imagine I am that lower court judge. And imagine I love the same woman I am married to today, who is mostly Filipina. Imagine I haven’t married her yet. Do you think I could ever rule neutrally in that case? Of course not. I would be ruling on my right to marry the woman I presently loved.
And of course interracial marriage is different than gay marriage…. If I wasn’t currently in love with someone of another “race,” yeah such laws might be seen as reducing my options, but if I was gay, an anti-gay marriage law would keep me from marrying everyone I was likely to fall in love with. It wouldn’t be reducing my options, it would be eliminating all of them completely. I mean how can Judge Walker possibly be even-handed when his legal rights are on the table?
So if he is in a relationship serious enough to mean that he would like to marry that man, I don’t see how he could possibly be unbiased. And if he was “merely” gay, the issue is not as acute, but it is there.
At the time, I don’t think anyone seriously doubted the story, if only because it would be so incredibly irresponsible of the San Francisco Chronicle if they weren’t sure. But in a recent SF Chron story, Judge Walker has verified it and only lightly addressed the ethical issue:
The now-retired federal judge who struck down California’s ban on same-sex marriage shared his reflections with reporters for the first time Wednesday, saying that the trial should have been televised and that he never considered stepping aside because he is gay.
“If you thought a judge’s sexuality, ethnicity, national origin (or) gender would prevent the judge from handling a case, that’s a very slippery slope,” former Chief U.S. District Judge Vaughn Walker told reporters in a conference room at the San Francisco courthouse where he served for 21 years.
“I don’t think it’s relevant,” he said.
Now, to be blunt, I considered that at best a flippant consideration of this weighty issue. So I wrote the following email to the author of the article, Bob Egelko, and the exchange was revealing:
From: Aaron Worthing [mailto:firstname.lastname@example.org]
Sent: Thursday, April 07, 2011 5:35 PM
To: Egelko, Bob
Subject: your article on Judge Walker
I saw you wrote an article on Judge Walker, in part confirming that he was gay.
He claims that it is irrelevant, but in fact there is a serious ethical issue. I lay out my argument here: [linking to my old post].
But here’s the short version. He was ruling on his right to marry anyone he might be interested in marrying. And when your own personal rights are on the docket, you cannot rule in the case. It’s that simple.
So I was wondering if anyone asked about that? Or would it be possible for someone to ask that follow up question?
I thank you for your time and consideration.
Aaron Worthing, Esq.
That prompted this reply:
On Thu, Apr 7, 2011 at 8:51 PM, Egelko, Bob <BEgelko@sfchronicle.com> wrote:
Sorry, I don’t agree. If Judge Walker had a marriage license application pending or immediate plans to marry, he would be ruling on a case that affected his rights. As it is, he has no more of a conflict than a female judge, or a devoutly Catholic male judge, ruling on the right to abortion. Or a judge of any race ruling on integration or affirmative action in communities where those affect day-to-day lives. Or a heterosexual supporter of Prop. 8, who believed it would protect his own marriage or his children, ruling on its validity.
Now there are several things to note. First, he does seem to concede that under some circumstances Judge Walker should have recused himself. That will be important in a minute. Also, he wants to draw a distinction between wanting to get married in the near future, and wanting to get married someday. But aren’t both situations equally implicated by the ruling? Both dreams would have to be destroyed if he rules against gay marriage. Its at most a difference in how acute the problem is.
And notice he also misses the issue of having your legal rights on the docket. A catholic male judge might have a certain preferred outcome in an abortion case, but he is not ruling on his personal rights. Ditto on affirmative action—a judge typically has no rights on the docket in an affirmative action case.
Likewise he doesn’t understand the difference between degrees of bias. By the logic of those opposed to proposition 8, yes, everyone has a bias. Straight people want to keep gay people out of the institution of marriage to preserve it and gay people want to be let in, so they can get married.
When you are in a situation where everyone is biased, what you do is try to find someone with the least bias. For instance, everyone has an interest in the vitality of a free press. So every judge would have cause to be accused of bias in, say, New York Times v. Sullivan (limiting libel liability). But just because you can’t find someone with no interest in the outcome of the case doesn’t mean it is suddenly okay for the judge to be holding stock in the NY Times as decides their potential liability. That’s what this is like. There is a world of difference between being biased because you have an interest in the institution of marriage generally v. determining whether or not you have the right to marry anyone you are likely to want to marry.
I replied as follows:
From: Aaron Worthing [mailto:email@example.com]
Sent: Thursday, April 07, 2011 6:10 PM
To: Egelko, Bob
Subject: Re: your article on Judge Walker
First, thanks for taking the time to respond.
Second, even if you disagree, don’t you think that is a question that should be posed? You don’t think it is even reasonable to ask and get his reaction? I can assure you that many very serious lawyers have had a concern about this.
For instance, here’s Patrick Frey, who opposed Proposition 8 on the subject: [the link above from Patrick.]
Feel free to say we are wrong, but shouldn’t you at least ask him the question?
Third, did you ask him if he had any long term relationships (presumably with another man)? Whether he had any plans to marry such person?
And here is the somewhat maddening response:
On Thu, Apr 7, 2011 at 9:14 PM, Egelko, Bob <BEgelko@sfchronicle.com> wrote:
He spoke some about his partner, but I think it’s a private matter that’s pretty much his business, not ours.
Get that? So first, he says that unless Judge Walker got a marriage license or has plans to marry, it’s not an ethical problem. Then when I ask whether those conditions were met, suddenly he wants to respect the judge’s personal privacy.
From: Aaron Worthing <firstname.lastname@example.org>
Date: Thu, 7 Apr 2011 21:27:23 -0400
To: Egelko, Bob<BEgelko@sfchronicle.com>
Subject: Re: your article on Judge Walker
Whether he has committed a violation of the Code of Judicial Conduct is not a private matter. If he wanted to keep his private life private, he has to recuse himself. But he cannot sit in on that case and pretend his potential biases are off limits.
He is required to disclose every potential bias. For instance, in the realm of finance he is required to disclose every single stock he owns. When he entered into this case he had a duty to disclose the fact he was gay and the nature of his relationship with any person, so that the lawyers would be fairly warned that there might be a serious ethical issue.
And check the Code of Judicial Conduct. It is not enough to actually be unbiased but to avoid even the appearance of bias.
These are questions that must be asked and answered, to the public, so that they can feel confident that he ruled on that case neutrally.
There was no reply. As of about two hours ago, I sent him this final email:
Date Fri, Apr 8, 2011 at 2:29 PM
subject Your Article on Judge Walker
I wanted to get a final and clear answer to the questions I had.
1) Did you ask Judge Walker about the nature of his relationship on the day of the Proposition 8 trial, to determine if he had an interest in himself being married?
2) Did you ask him about the ethical issues involved in sitting on the case as a gay man?
3) And if you did, will you reveal those answers to the world?
4) And if you didn’t ask, do you plan to follow up?
I will also note that in the pages of your own newspaper, a column appeared saying the following:
If Judge Walker is indeed in a long-term, same-sex relationship, he certainly has an “interest that could be affected substantially by the outcome of the proceeding” – he and his partner are now permitted to marry! – and that, according to Judge Walker’s own finding, has financial benefits as well. Such conflicts would have required recusal, and cannot be waived by the parties.
If the relationship does not create such a conflict, it nevertheless creates the circumstance “in which the judge’s impartiality might reasonably be questioned.” That ground for disqualification can be waived by the parties, but the judge must “disclose on the record the basis of the disqualification” and then only continue after the parties have agreed in writing to his continued involvement. No such disclosure and agreement occurred in this case.
You can read the whole thing, here: [link]
You have argued that it was a private matter, but the fact is that judges give up their privacy to sit on cases. It does suck on some level, but it is unavoidable.
These are serious issues of judicial ethics that should not simply be ignored because you don’t think it is important. We the people should decide what is relevant.
I thank you for your time.
It has been two hours and he has yet to respond. I will certainly tell you if he responds.
Now it is worth noting that Mr. Egelko is not an amateur. His biography states that he in fact went to law school and is a member of the California Bar. But nonetheless he has blown off serious questions about Judge Walker’s ethical conduct in this trial, because he doesn’t happen to agree that they are concerns—indeed, he is not even willing to tell the public whether Judge Walker has violated the rules of ethics—apparently because in his personal opinion it is not a problem. With all due respect, Mr. Egelko, shouldn’t we be the judge of that?
Toward the end of that article, however, Judge Walker said something very revealing about media coverage of the issue:
The Chronicle first disclosed Walker’s sexual orientation during the trial, a fact he had neither discussed publicly nor tried to conceal. He said Wednesday he’d been surprised that it hadn’t surfaced earlier and had surmised that “every journalist had decided it was not news.”
Sure, with 5,000 stories about how Clarence Thomas must recuse himself because he got corporate cooties from the Koch brothers, or stories claiming that Judge Feldman in New Orleans can’t rule on the drilling moratorium because he once owned oil stocks and therefore has oil cooties, how on earth is it news that a man ruled that the evangelical Christians who wrote the Fourteenth Amendment intended to legalize gay marriage, and it just took us 142 years to figure it out, was gay?
Someone needs to sit Judge Walker down and ask him those questions. To do anything else is journalistic malpractice. Indeed, bluntly, the Chief Judge of that District Court needs to do so as well.
[Posted and authored by Aaron Worthing.]