A federal judge next week will consider whether Judge Vaughn Walker should have recused himself from the Proposition 8 same-sex marriage trial because he is gay with a long-time partner. We take up judicial ethics. Under what circumstances should judges step away from a case?

Deborah Rhode, professor of law and director of the Center on the Legal Profession at Stanford Law School
John Eastman, law professor, former dean of Chapman University School of Law and founding director for the Center for Constitutional Jurisprudence

  • Gerald Fnord

    Obviously, a judge should recuse himself if he will inevitably identify more with one side than another. 

    For example, should the government ever attempt anything dictatorial—for example conduct widespread torture under some sort of euphemism, something unlikely like that—the judge would be much more likely to  identify with an innocent man than with a faceless and cruel State, so he really shouldn’t judge the case—he might award far too much in the way of damages to the man’s heirs and assigns, and the government’s budget must come first.

    Judge Vaughn, being gay and (to all evidence) reasonable, must therefore
    been much more able to identify with reasonable, gay, autonomous, people than with dodgy
    theocrats controlled by voices in their heads (or in the heads of my shepherd ancestors).

  • Bernieschlotfeldt

    Opponents of same sex marriage claim that heterosexual people have a stake in restricting marriage to heterosexual couples. If that is the case, why would a heterosexual judge not pose just as much of a risk of conflict of interest? If it’s not the case, why did they push through Proposition 8 to begin with?

  • Elasmobranch000

    The defense tried to present evidence showing that gay marriage does harm to heterosexual marriage, by that logic heterosexual judges would have a vested interest in presenting that harm to themselves.

  • Jim

    Would a judge in case involving the legality of the death penalty have to state at the onset that he would never commit murder? If no, then why should Judge Walker have be required to state that he had no intention of being married under the law he was deciding?

  • Bernieschlotfeldt

    Can the guests or anyone explain what would be an identifiable reason for recusal for heterosexuals? The final decision in the case was based on the fact that heterosexuals and the state HAVE NO INTEREST in banning same sex couples from marrying, and yet it’s clear that a great many heterosexuals do believe they have a vested, material interest.

  • Andrew D Dixoin

    According to the logic that the judge should recuse himself because he may, at some point in the future, get married should disqualify any judge who may be married now or in the future. Even straight judges. After all, the logic of the plaintiffs is that they are defending marriage so any straight judge would benefit too if his marriage is “defended.”

  • $301685

    According to Eastman, a gay federal judge in a personal relationship, unrecognized by the state, or federal government, is unfit to rule on P8. So who would Eastman suggest should have ruled on P8, and what would their sex, gender, and sexual orientation be? Furthermore, did everyone pay attention to his blind allegiance to Scalia and Thomas?  Eastman is a ridiculous proposition 8 proponent. Because this case is personal, he deserves to have his face rubbed in his absurd perspective of reality. 


Sponsored by

Become a KQED sponsor