Ethics

There has been a bit of controversy over the last couple of days regarding the revelation that Vaughn Walker, the federal judge presiding over the challenge to Proposition 8 (the California ban on SSM), is gay.  Many have said, and I agree, that this is a non-issue.  But even some observers who believe that Proposition 8 should be struck down on constitutional grounds confess that "If I were on the side supporting the ban and found it struck down by a supposedly gay judge, I'd have some questions about whether the judicial deck had been stacked from the start."  In the event that the ban is struck down, I really hope that the ban's supporters will not pin the outcome on the sexual orientation of Judge Walker.  One premise of the rule of law is that we maintain public confidence in the ability of judges to do their jobs impartially; even if pure impartiality is a fiction, it's a very important fiction. 

My question, though, is whether this is the shadow side of celebrating judges for bringing their own unique life experience to bear on their work.  If we reject the notion that the judge is just an umpire objectively calling balls and strikes, and that who she is as a person is relevant to who she is as a judge, is concern about Judge Walker's ability to preside over the Prop 8 case the predictable outcome?  To be clear, I am not concerned about Judge Walker's ability to preside.  I'm wondering whether our public discourse about judges in recent years, as shaped by legal realism, makes the public more willing -- perhaps too willing -- to pierce the judicial veil, questioning the integrity of the process.  Or maybe this problem has always been with us, regardless of the debates occurring in Supreme Court confirmation hearings.