It's an interesting question, I suppose. Did it matter that Thurgood Marshall was black? Should he have recused himself from civil rights decisions that affected African-Americans? I can't see that many would agree with that, although the line of questioning from Republican senators in the Kagan hearings might give one pause. Gerard Bradley tries a more focused attempt to delegitimize the enormous victory yesterday for marriage equality:
When a judge is obliged to withdraw from a case due to a conflicting interest we call it “recusal.” Federal law requires that, whenever a judge knows that he has “any other interest [ that is, besides a financial interest] that could be substantially affected by the outcome of the proceeding” at hand, or when “his impartiality might reasonably be questioned”, he must recuse himself. I am not saying that Judge Walker should have refused himself in Perry v. Schwarzenegger. I am not saying so because nowhere (as far as I know) has Judge Walker volunteered or been made to answer questions about how the outcome of that case would affect his interest (whatever it is) in marrying, and thus his interest in the manifold tangible and intangible benefits of doing so. That is a conversation worth having.
So Bradley wants to raise the issue of Walker's alleged bias - without substantiating any claims to it - while not raising it. Leave this particular piece of passive aggression aside - and you find that the logical conclusion of preventing gay judges from adjudicating on questions to do with gay rights would be removing all gay people from the discussion. Every gay person might one day fall in love and want to get married. Some may choose not to (should they recuse themselves too?); some may believe it violates their faith (ditto); others may already be in such marriages in one of five states (ditto plus plus). Similarly, since we are debating the alleged superiority of heterosexual sexual orientation here, is not heterosexuality by the same reasoning also a conflict of interest? Or are gay rights only legitimate when they are supported by straight people?
And here's something that really does pose a dilemma for a free and fair society. On this issue, there is scarcely any opposition in the gay community. Yes, there are some debates about the role of courts, and strategy. But I know of almost no gay people who would disagree with the core arguments that Judge Walker elaborated upon. And so we really do get an almost exquisite example of a majority deciding the fate of an issue where the minority is united and clear. When Newt Gingrich speaks of the views of "the American people", he means heterosexuals.
That is also a conversation worth having.
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