Should Judge Walker Have Recused Himself?

Under United States Code Title 28, section 455, "Any justice ... shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." The code goes on to include other factors, like having inside information, financial interest, or a relative who is a party in the proceeding. The code is pretty silent on personal preferences or political ideologies.

And yet the austere and most honorable American Family Association is trying to impeach Judge Walker because his assumed homosexuality presented a conflict of interest. Would they be making the same demand were he divorced? Or impotent? He could never properly rule on the paramount role of procreation in marriage. And if he were a Buddhist, get this, he would believe that where the sexual act is an expression of love, respect, loyalty and warmth it must be recognized as a valid human interaction, that we must have respect for all people, without judgment or fear, and that each of us, our freely lived individual selves, is proof of the miracle of the Divine. Certainly something like that could have seriously impaired his judgment.

The ironic thing is that this new movement to impeach him only proves Judge Walker’s point: the proponents of Prop 8 were motivated, and continue to be motivated, by animus, and a superiority complex rooted in a belief that gays are not only morally repugnant, but unable to consider anything other than this mythical agenda whereby we succeed in wiping out the human race. This is just more of the not so age old battle cry espousing the idea that homosexuals operate under a system of extremist beliefs and a desire to convert all to our chosen lifestyle, infiltrating areas of government and education, ignoring tradition and law in favor of asserting our will on the American people. And, of course, causing natural disasters.

The question we have to ask ourselves is, would a majority of reasonable people, using common logic and generally accepted principles of thought, have come to the conclusion that he was incapable, because of his sexual orientation, of properly understanding the facts of the case and interpreting the law accordingly? I spent countless hours in law school trying to pin down the definition of "reasonable." But asking for the impeachment of a federal judge because you don't like his ruling? I don't find that very reasonable.

Should he have recused himself? Should Justice Scalia, avid gun owner, have recused himself from United States v. Lopez, a case that ruled on weapon possession near a school? Should Sandra Day O'Connor, who has a womb, have recused herself from any case involving a woman's right to choose? Should any Supreme Court Justice who voted for Bush in the 2000 election have recused themselves from Bush v. Gore? Judges are presumed to leave their personal life at the door. It’s part of their job. If the proponents of Prop 8 thought Judge Walker was incapable of doing that job because he might be gay, they should have said something a long time ago.

Because Judge Walker has been siding on the side of civil rights for years. In 1999, he rejected the argument that pro-gay comments in the classroom violated a child's religious rights. And in 2005, Walker sided with the City of Oakland against two employees who placed flyers promoting "natural family, marriage and family values," writing that the City had "significant interests in restricting discriminatory speech about homosexuals ... (and has) a duty under state law to prevent workplace discrimination on the basis of sexual orientation." That's what I learned about him on Wikipedia. Obviously, research isn't a priority when you're fighting marriage equality.

Look, folks, no one batted a eyelash about Judge Walker until after the fact. You can't cry wolf if you've already decided it's a dolphin. The ball is rolling, and just because he pushed it in a direction you don't like,  doesn't mean he's incapable of pushing it.

Photo credit: runJMrun