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.
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.
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.