Thanks to the Judge Walker controversy, now have proof that the best legal ethicists in the nation are human. I suppose that’s something.
My colleagues in the legal ethics field are arguing—decreeing, really— that Judge Vaughn Walker’s decade-long same-sex relationship didn’t need to be disclosed before he ruled against Proposition 8 (California’s voter-approved gay marriage ban) because, they say, it created no reasonable doubts about his impartiality. Coincidentally, they also really, really like his decision. But then, so do I.
Almost all of these distinguished ethicists—people whom I read, respect, and frequently quote, also fervently argued five years ago that Justice Scalia’s participation in a large duck hunt with then-Vice-President Cheney created sufficient public doubts about the integrity of the judicial process that he should have recused himself from a Supreme Court case that had Cheney as a named party, and I agreed with them. But if you interviewed 100 reasonable, non-partisan fair and objective members of the public, is there any question that the vast majority of them would agree that a judge in an undisclosed same-sex relationship, deciding the constitutional status of gay marriage in the state in which he resides, has a far greater appearance of bias problem than a Supreme Court Justice who had participated in a duck hunt with one of the individuals named in the suit in his official (as opposed to personal) capacity?
To read the frankly insulting commentary issuing from otherwise respectable sources, you would think we live in Bizarro World. These experts argue that to even suggest that Walker had the appearance of bias is tantamount to bigotry. Well, I guess the vast, vast majority of the public—and me, and every single educated person I’ve discussed this issue with, is just bigoted and unreasonable. Still, that’s a problem, because the recusal rules are not there to protect the regard in which the judicial process and the rule of law is held by elite, progressive Democratic lawyers and ethics professors. It is there to ensure the faith and trust of the public—the normal people, the 99.99% who base their judgments on life experiences and not on reading legal ethics opinions, codes of conduct and legal ethics treatises all day long. And those people, the ones whose belief in the fairness of the judicial system is critical to the the nation’s vitality and existence, do not go through the labyrinthine, and I think, cynical, legal ethics analysis required to conclude that Judge Walker had no obligation to reveal his domestic status, because, really, it was completely irrelevant. They hear about Judge Walker’s late disclosure, and raise an eyebrow…because it raises reasonable doubts.
They think, in other words, that the case may have been fixed. Now, the more than 50% of the public that now approves of same- sex marriage may not get upset about the fact that the case seems to have been fixed, because they like the decision. But the appearance of an unfair process harms–grievously, I think—the public’s perception of the legal system, and that is what matters—and matters more than the fat of gay marriage. The legacy of this case, future appeals aside, is that a measure voted on and approved by California voters was overturned by a judge who had an apparent personal interest in the subject matter of the case, an appearance of a conflict which he intentionally failed to disclose until a full year after his decision, and the legal elite and academics brushed all of this aside as unimportant because they want same-sex marriage on the books.
“By any means necessary.” The ends justify the means. That’s a hell of a way for a democracy that supposedly was built on the rule of law and due process to render social change.
We are going to have legal same-sex marriage, in California and the rest of the country, sooner or later. That will be a positive development. The troubling question is whether the judicial system will have any perceived integrity left by the time it happens. It will not, if those who are charged with identifying and criticizing professional conduct that jeopardizes public trust in our courts allow their political and social beliefs to warp their own independent judgment.