Contacted about the argument that federal Judge Vaughn Walker should have recused himself from the case over California's ban on same-sex marriage because he is gay, NYU law professor and judicial ethics expert Stephen Gillers called the argument “ridiculous.”

This argument was pushed months ago after reporting surfaced that Walker is gay, with the non-profit Liberty Counsel saying that “in the interest of justice, Judge Walker should do the honorable thing and immediately recuse himself.” It was revived today by The Washington Times.

Gillers said it was significant that none of the litigants in the case had asked that Walker should be recused. Gillers also stated that “the argument that your identity colors your ability to be impartial -- whether you are black, a woman, or gay -- has been repeatedly rejected by the courts.”

Gillers pointed to two cases in particular in which the federal courts rejected arguments that a judge's identity requires recusal, Blank v. Sullivan & Cromwell and MacDraw, Inc. v. The CIT Group Equipment Financing, Inc. In Blank, the judge rejected a suggestion that she should recuse herself because she was an African American woman who had worked on civil rights cases. In MacDraw, the judge rejected a motion to recuse himself, in part, because he was Asian American, and sanctioned the attorneys who made the motion.

Blank v. Sullivan & Cromwell was a sex discrimination case under Title VII of the Civil Rights Act of 1964 brought in federal court in Manhattan. The defendants sought to recuse the judge in the case, Constance Baker Motley. Motley was the first African American woman ever appointed to the federal bench. The defendants argued in part that Motley should be disqualified from the case on the ground that she “strongly identifies with those who suffer discrimination in employment because of sex or race.”

Motley denied the recusal motion, noting that (via Nexis), “if background or sex or race of each judge were, by definition, sufficient grounds for removal, no judge on this court could hear this case, or many others, by virtue of the fact that all of them were attorneys, of a sex, often with distinguished law firm or public service backgrounds.”

In the other case, MacDraw, Inc. v. The CIT Group Equipment Financing, Inc., two attorneys sought to recuse federal Judge Denny Chin, in part, because the attorneys “were involved in a case against the Commerce Department and the Clinton Administration in which they had been accused of being biased against the Asian-American community; and (3) I was a recent appointee of the Clinton Administration and had been actively involved, prior to taking the bench, with the Asian American Legal Defense and Education Fund and the Asian American Bar Association of New York.”

Chin rejected their motion for recusal and sanctioned the attorneys, in part, for their suggestion that he recuse himself because of his race. Chin barred them from taking part in the case in the future and placed strict limits on when they could appear in the same judicial district in the future.

The U.S. Court of Appeals for the 2nd Circuit affirmed Chin's ruling. The court said:

Courts have repeatedly held that matters such as race or ethnicity are improper bases for challenging a judge's impartiality. See United States v. El-Gabrowny, 844 F.Supp. 955, 961-62 (S.D.N.Y.1994) (refusing to answer questions posed regarding judge's religious affiliation and connection, if any, to Israel); Blank v. Sullivan & Cromwell, 418 F.Supp. 1, 4 (S.D.N.Y.1975) (sex or race is improper basis for recusal); see also Pennsylvania v. Local Union 542, Int'l Union of Operating Eng'rs, 388 F.Supp. 155, 163 (E.D.Pa.1974). A suggestion that a judge cannot administer the law fairly because of the judge's racial and ethnic heritage is extremely serious and should not be made without a factual foundation going well beyond the judge's membership in a particular racial or ethnic group. Such an accusation is a charge that the judge is racially or ethnically biased and is violating the judge's oath of office.