Legal Commentary

At the Mirror of Justice blog, Rick links to a follow-up op-ed by his colleague Gerard Bradley, questioning Judge Walker's impartiality in the Prop. 8 case.  Bradley describes his view as not being that Judge Walker was biased on the grounds of his personal sexual relationships (as to which I am ignorant), but "lamenting that the question had not been frankly explored in a timely way."  Bradley's follow-up suggests that it Judge Walker's opinion was "not the handiwork of an impartial and open mind on the subject of same-sex marriage," but rather resembled "an ad hoc rationale for conclusions reached by its author . . . on other grounds."  He raises doubts that Judge Walker decided the case impartially, although he makes no firm conclusions -- one might detect a hint as to what he thinks the reasons are, but he certainly makes no firm conclusions -- about why.  

I have not yet read all of the Judge's opinion, so I can't offer a substantive response to Bradley's view that Walker's opinion was so poor and/or uncharitable to the other side as to provide strong evidence that he was not impartial in the case.  I also will not delve into all the ins and outs of judicial bias here.  I do think that to the extent that to the extent that Bradley believes that a certain spirit of generosity or charity toward someone else's arguments is an indication of an open mind, Bradley's op-ed itself does not display enough of this same virtue.  (Of course, Bradley is not a judge.)  

Is it impossible to imagine reasons, other than reasons of personal interest relating to sexual orientation, why Judge Walker's opinion accepts the arguments of one side and rejects the arguments of the other, or why it rejects the testimony of one set of witnesses and accepts the testimony of the other side's witnesses?  Of course not.  He may believe the law clearly favors one side.  He may also believe -- and this does not appear to be a wholly uncommon view -- that one side did a far weaker job of presenting strong witnesses.  A charitable attempt to address the other side of an argument is indeed a strong indication of impartial reasoning by a judge.  But I do not understand it to be quite as mandatory as a reading of Bradley's op-ed might suggest.  A judge is obliged to view a case impartially; he or she is not obliged to refrain from saying that one side of the argument is ultimately dead wrong, if that is what he or she concludes in the course of his or her judicial office.

Where I think Bradley's argument really misses is not that he is critical of Judge Walker's opinion.  For one thing, I haven't read it yet; for another, that is the kind of thing lawyers and academics argue about all the time.  Where it misses is its suggestion that this points us strongly to the conclusion that Judge Walker must have been motivated by his personal situation, whatever that might be.  Many people have strong views about same-sex marriage, either in and of itself or with regard to its constitutionality (would that there were more recognition that one need not imply the other).  Some of those views are the result of sexual orientation, in whatever direction, or religious views, again in whatever direction.  If a judge reasons solely from those premises, that is a problem.  If a judge reasons solely from any extrajudicial premises, that is a problem.  But that does not mean that a decision favoring a judge's own views is necessarily a partial one, let alone that the cause of the partiality is necessarily the judge's sexual orientation or religious views.  Even if Judge Walker's opinion were utterly awful, that would not mean it was clearly due to his sexual orientation.  There are such things as bad or even "biased" (in a non-technical sense) opinions written by what we might describe (in a technical sense) as impartial judges.  I can think of some passages -- or whole opinions -- written by, say, Justice Scalia that I cannot help but think were written in a "fit of spite."  But that does not mean I am led inexorably to the conclusion that he was led to those opinions solely by his personal and/or religious views, untouched by any sense of judicial office.  I can disagree vehemently with those opinions, and find them utterly ungrounded, without concluding that he ought to have recused in those cases.  

Bradley is entitled to raise these questions -- although he is wrong that they were not frankly explored at an earlier time; they were the subject of substantial press discussion, at least.  But before suggesting, based on a reading of what may be a flawed but does not seem to be a careless opinion, that the primary or only reasonable conclusion we can draw is that the judge's sexual orientation must have driven his opinion, I think Bradley ought to consider the obvious existence of other possibilities.  Charity and an open mind demand that much.