Yesterday, Media Matters for America reported that judicial ethics expert Stephen Gillers, an NYU law professor, said 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 is “ridiculous.” Today, New York Times and Associated Press articles quote other judicial ethics experts agreeing that the argument that Vaughn should have recused himself from the case has no merit.
The Times quoted Gillers and Hofstra Law School professor and judicial ethics expert Monroe Freedman, and the AP quoted judicial ethics expert and law professor William G. Ross from Samford University's Cumberland School of Law. All of them agreed that Vaughn's sexual orientation was not a reason for recusal.
From the Times:
Monroe H. Freedman, an expert in legal ethics at Hofstra Law School, said that while bias could lead to recusal in rare cases, “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.' ”
Mr. Freedman cited a 1975 opinion by Judge Constance Baker Motley of Federal District Court, an African-American jurist who was asked to disqualify herself from a lawsuit alleging unlawful discrimination. “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,” she wrote.
Stephen Gillers, a professor at New York University Law School, said the time to raise such a challenge to Judge Vaughn had passed: if an issue is not brought up at trial, it is considered waived. “You can't wait to see how a judge will rule and then say he's the wrong judge,” Mr. Gillers said.
From the AP:
William G. Ross, an expert on judicial ethics and law professor at Samford University in Alabama, said that a judge's sexual orientation has no more relevance to his or her ability to rule fairly on a case involving gay marriage than it would for a deeply religious judge or a judge who had been divorced multiple times.
“Under the logic of the people challenging the judge's fitness to rule on a case involving gay rights because he or she was gay, one would have to find a eunuch to serve on the case, because one could just as easily argue that a heterosexual judge couldn't rule on it either,” Ross said.