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In Search of Neuter Judges

A Commentary By Susan Estrich

Many years ago, the late and great U.S. District Court Judge Constance Baker Motley of the Southern District of New York was assigned to hear a case alleging sex discrimination by one of New York's top law firms. The plaintiffs were no doubt as pleased by the assignment as the defendants were displeased: Judge Motley had served as one of Thurgood Marshall's top deputies at the NAACP Legal Defense and Education Fund, before Marshall was appointed to the Supreme Court and Motley to the federal district court. She was widely known as a strong supporter of women's rights.

This was, no doubt, why the defendants in the case moved to disqualify her, claiming she could not possibly judge fairly the claims of bias raised by female lawyers against male lawyers.  

Motley would have none of it. She refused to recuse herself, pointing out that if being female was enough to disqualify her, then being male was enough to disqualify her male colleagues. And since, as she put it, the southern district did not include any "neuter" judges, she was as qualified as anyone to hear the case.  

I couldn't help but remember the story when I heard this week that the sponsors of the anti-gay marriage amendment in California were seeking to have Judge Vaughn Walker's ruling thrown out because he is a gay man who has been in a long-term relationship with his partner. According to the lawyers for Protect Marriage, they refrained from raising the issue of the judge's sexual orientation (one of the least well-kept secrets in Lawyer Land) during the trial, but once the now-retired 67-year-old Republican appointee disclosed that he was in a long-term relationship, this made him "too similar" to the plaintiffs in the case who were seeking to marry. Protect Marriage general counsel Andy Pugno was quoted as saying: "We deeply regret the necessity of this motion. But if the courts are to require others to follow the law, the courts themselves must do so as well."  

According to Pugno, it is not that the judge is gay, but that he is in a stable relationship that should retroactively disqualify him. If the judge were cruising gay bars and picking up young men, that would -- presumably -- be fine with Pugno. Come on.  

If being gay disqualifies you from taking a position on gay marriage, so does being straight. If being in a relationship is disqualifying, then all of the judges in relationships here in California (and by my reckoning, most of them are) should be disqualified. Walker hasn't said a word about wanting to get married, any more than Motley wanted a job at the firm that was being sued.  

As Motley might say, there are no judges with no sexual orientation in California and precious few who have not been in, who are in, or who are on their way out of relationships. That means Walker was as qualified -- or unqualified -- as any judge to decide this case. His decision should stand. Protect Marriage's efforts to throw it out because of his private life undermine their claims that they are anything other than another anti-gay group.   


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See Other Commentaries by Susan Estrich.

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