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Does Judge Walker Have a Conflict?

A Commentary By Debra J. Saunders

Tuesday, February 09, 2010

In the circle of lawyers and judges I know, U.S. District Judge Vaughn Walker is a giant. He is a brilliant jurist, legal eagles will tell you, who has insightful, and often unexpected, opinions. He's funny and charming -- and he's gay.

As Walker has presided over the trial challenging Proposition 8 -- the California 2008 ballot initiative that limited marriage to a man and a woman -- the legal community wondered when his sexual orientation would become an issue. After much discussion among editors, The Chronicle ran a column Sunday by Phil Matier and Andrew Ross that reported on "the biggest open secret" in the landmark case. To some readers, the decision to run, or not to run, a story about a judge's private life might seem cut and dried. It is not.

Editors, reporters and columnists have to juggle privacy with the public's right to know. (It would be wrong to accuse The Chronicle of "outing" Walker when he already was out.)

Until Sunday, it seemed inevitable that however Walker ruled, the losing side would bring up his sexual orientation. If he overturned the measure, losers would hit the conservative media to argue that with a gay judge presiding, the fix was in from the start. If Walker upheld the measure, angry gay activists would denounce him as a self-loathing turncoat.

Now, whatever Walker decides, the public can't complain that he had a sub rosa agenda. Walker is not a predictable man. As a private attorney, he tangled with San Francisco's Gay Olympics to protect the U.S. Olympic Committee's brand name. Appointed to the bench by President George H.W. Bush, Walker's libertarian streak has led him to advocate legalizing drugs.

But I still wonder if he should have recused himself from this case. There are strong reasons not to. After all, at The Chronicle, gay reporters can and do cover gay issues with the advantage of personal insight. Some might claim that they are biased, but it's not as if there is a neutral identity -- Straight? White? Male? -- that is free from bias.

And where does it end? Should a Mormon judge have to recuse himself? A devout Catholic? A lawyer friend explained to me that a federal judge constantly has to preside over cases argued by former associates and friends, yet the expectation of impartiality remains. To recuse oneself because of broad identity issues, this lawyer argued, would be to admit to being influenced by extralegal considerations.

The problem is that where there may not be a conflict of interest, there may be the appearance of conflict -- and that matters, too. Many California voters already are fed up with imperious judicial rulings -- and a majority of California voters approved Proposition 8. While Walker certainly did not have a legal obligation to recuse himself, it might have been better if he had let some other judge decide this case. It ultimately will be determined in higher courts anyway.

Walker didn't help himself when he ordered Yes on 8 campaign strategists to release their internal memos to plaintiffs seeking to overturn the measure -- a decision that flabbergasted many. A three-judge federal panel unanimously tossed out the order, noting that it "would likely have a chilling effect on political association and the formulation of political expression." There are limits to what the courts should do.

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