Litigation

Judge Walker Faces Backlash Over Prop 8 Ruling

By Peter Hardin

A sharp backlash has erupted from some conservative quarters against federal Judge Vaughn R. Walker of San Francisco. It includes a call for impeachment and personal attacks over the judge’s alleged homosexuality.

Judge Walker ruled this week that California’s Proposition 8 ban on same-sex marriage is unconstitutional (see Gavel Grab), a ruling that some analysts praised for brilliance and some activists dismissed as writing personal policy preferences into law.

The American Family Association issued a statement headlined, “Time to Impeach Judge Walker,” saying he “has exceeded his constitutional authority and engaged in judicial tyranny.” It also said the judge is “an open homosexual” and “should have recused himself from this case due to his obvious conflict of interest.”

“Here we have an openly gay ? federal judge substituting his views for those of the American people and of our Founding Fathers,” protested Maggie Gallagher of the National Organization for Marriage, according to a Sacramento Bee article.

“A homosexual judge branded 7,001,084 California voters as hateful people on Wednesday. In so doing, Vaughn R. Walker, a man never elected to his lifetime position, decided he would reshape the state to better suit his personal lifestyle preference.”

In a column in the same newspaper, commentator Wesley Pruden labeled the judge a “not-so-discreet gay caballero in San Francisco.”

But some legal experts said it was too late to raise the recusal issue, or that it would be unfounded, and there also were a number of commentaries commending the analysis and evidentiary approach taken by Judge Walker in his opinion.

Law professor Stephen Gillers of New York University Law School told the New York Times, ?You can?t wait to see how a judge will rule and then say he?s the wrong judge.? And Monroe H. Freedman of Hofstra Law School suggested that while in rare cases bias could be grounds for recusal,  ?you could say, ?If a gay judge is disqualified, how about a straight judge?? There isn?t anybody about whom somebody might say, ?You?re not truly impartial in this case.?”

The Times profile was headlined, “Conservative Jurist, with Independent Streak.” A profile in the San Jose Mercury News called the judge an “unpredictable iconoclast” and noted that after he was nominated, Judge Walker encountered criticism that he was hostile and “insensitive” to gay and lesbian rights. He first was nominated by President Ronald Reagan, and then by President George H.W. Bush.

Meanwhile a Washington Post editorial described the judge’s ruling as “well-founded” and said it should be upheld, despite the editorial board’s preference for action through the “democratic process” as opposed to “judicial fiat.” In Slate, a commentary by Dahlia Lithwick labeled the ruling “brilliant” and “written for a court of one,” Supreme Court swing vote Justice Anthony M. Kennedy.

Assuming the decision is appealed all the way to the Supreme Court, James Taranto predicted in a Wall Street Journal commentary that it would win a 5-4 majority in favor of a constitutional right to same-sex marriage, in a decision authored by Justice Kennedy.

To learn more about a trend toward villainizing judges over controversial decisions, and threatening them with impeachment, check out Justice at Stake’s issues page on the topic.

Full post as published by The Gavel on August 06, 2010 (boomark / email).