Eric Martin says what I have wanted to say, but have been too busy futzing around with other things to actually say, so I link and quote him here:
Many prominent conservatives are making the argument that Judge [Vaughn] Walker is gay and, therefore, his decision regarding Prop 8 might have been unduly influenced by his sexual orientation.
It’s not that I would suggest that his sexual orientation (if he is gay) has no influence on his jurisprudence, but here’s the thing, if homosexuality influences analysis of legal issues involving civil rights for homosexuals, doesn’t heterosexuality also influence decisions regarding these same matters?
Do read the rest, which includes a great quote from Stephen Colbert. (Credit to Ed Brayton.)
Judges, being human, are always subject to the potential constraints of their individuality, which comes with all the things that some people might call “baggage”: cultural, ideological, and socioeconomic backgrounds, for instance. Since everybody is similarly constrained, and since we need judges to resolve our disputes, and since a perfectly objective judge would probably just say “42” every time, we generally allow that every judge is going to see things differently. Random (or at least methodologically disinterested) assignment of trial judges and appellate review both help to compensate for some of that, especially where the reviewing panel is more diverse, but there is still plenty of room for criticism on the ground that the judiciary as a whole is not appropriately reflective of actual diversity in the general population (see, e.g., this article).
And, as Professor Dorf recently asked (in a discussion of the Supreme Court, but trial court judges undoubtedly have the same problems), if a judge is conscientious and recognizes his or her “ideological biases,” what should he or she do?
One answer would be to try to surface ideological biases and control for them. Yet presumably they’re already doing that, and it probably wouldn’t work. There is evidence that alerting people to their biases does not necessarily cure them of those biases (and can sometimes exacerbate them). In the end, I suspect that other than resigning, the best that a Justice can do is to proceed as before.
Nobody seriously believes the judicial system is perfect. Judges have made both good and bad decisions (for both good and bad reasons) since the first two people asked a third to resolve their dispute. That will never change. It’s just unrealistic to expect that people will not be biased. That’s why we use a grosser standard to determine judicial bias, turning to things like the judge’s financial interest in the outcome of a case, or preexisting relationship with one of the parties. Even if Judge Walker is gay, how would we determine whether he has a personal interest in the constitutionality of a law banning same-sex marriage? Wouldn’t we also need to determine whether he has a desire to marry a partner of the same sex? Should we determine whether he has somebody lined up, or whether this “interest” is wholly contingent on finding someone? How far would such intensely personal questioning go?
And if we substituted a straight judge, wouldn’t we have to determine the ideological biases of that judge? For instance, does it matter whether the judge is a member of one of the religious groups that were the proponents of Proposition 8, or a member of a religious group that opposed it?
Finally, after asking all the questions necessary to eliminate this potential bias in a judge, what kind of precedent have we set for other litigants? If an atheist files a lawsuit to raise a claim under the Establishment Clause, is he or she entitled not to have the case heard by a judge with views like those of Roy Moore?
While I appreciate the idea that people are biased by all sorts of under-the-surface factors, and agree that it presents an interesting problem, practicality leaves us with no option but to go forward anyway. Recognizing human biases and imperfection is an interesting and potentially consciousness-raising enterprise, but letting it get too far into the dispute resolution process would bring the whole system grinding to a halt, leaving everyone without access to third-party resolutions of their disputes. There are better ways to address the problem, like ensuring that the judiciary as a whole provides a better demographic representation of the general population.