Many California lawyers have told me of rumors that Judge Vaughn Walker, who is hearing Perry v. Schwarzenegger, is gay, but so discreet that there was no substantiation of it. Now the SF Chronicle has published an article discussing this "biggest open secret" of the case. I had worried that the Prop 8 defenders would wait until some critical moment in the litigation - perhaps on appeal - and then pop this news as a basis for undercutting Judge Walker's decision, if it turns out to favor the plaintiffs.
In my view, it's good news that Judge Walker's sexual orientation is now public (even if still not really substantiated). I wonder, in fact, if the plaintiffs' lawyers facilitated the Chronicle's report. The reporters of course contacted defendants' lawyers for comment, and received this response from Andy Pugno, counsel for the Yes on 8 team:
"We are not going to say anything about that," Pugno said. He was quick to assert, however, that Prop. 8 backers haven't gotten a fair shake from Walker in court. He cited both the judge's order for the campaign to turn over thousands of pages of internal memos to the other side and Walker's decision to allow the trial to be broadcast - both of which were overturned by higher courts.
"In many ways, the sponsors of Prop. 8 have been put at significant disadvantage throughout the case," Pugno said. "Regardless of the reason for it."
Lest there be any doubt, the fact that a judge shares a minoritarian status with the plaintiffs in a civil rights case is not a proper basis for recusing the judge. And there's a great 35-year-old decision on point, written by U.S. District Judge Constance Baker Motley, a former NAACP attorney and the first African-American woman federal judge. It emerged in a Title VII case brought by women challenging the sex discrimination then common at big law firms. The lawyers for Sullivan and Cromwell sought to disqualify Judge Motley from hearing the case. She wrote:
It is beyond dispute that for much of my legal career I worked on behalf of blacks who suffered race discrimination. I am a woman, and before being elevated to the bench, was a woman lawyer. These obvious facts, however, clearly do not, ipso facto, indicate or even suggest the personal bias or prejudice required by [the recusal statute]. The assertion, without more, that a judge who engaged in civil rights litigation and who happens to be of the same sex as a plaintiff in a suit alleging sex discrimination on the part of a law firm, is, therefore, so biased that he or she could not hear the case, comes nowhere near the standards required for recusal. Indeed, 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, by virtue of the fact that all of them were attorneys, of a sex…
Nowhere in their affidavits do defense counsel or defendant indicate that I have any relationship or personal association or interest in this litigation. They merely point to my general background and the obvious facts of my race and sex as evidence of extrajudicial prejudice. … [N]one of the facts included in the affidavits … are sufficient, under the statutes, for disqualification. Defendant's motion for disqualification is, therefore, denied.
Blank v. Sullivan and Cromwell, 418 F. Supp. 1, 4-5 (S.D.N.Y. 1976)
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