Benching Minority Judges

[marmar]

from the American Prospect:




Benching Minority Judges
The motion to vacate a gay judge's ruling in the Proposition 8 case isn't just homophobic. It could open minority judges up to challenges in all kinds of cases.

Pema Levy | April 27, 2011


Earlier this month, Vaughn Walker -- the federal judge in California who ruled that Proposition 8, the state's same-sex-marriage ban, was unconstitutional -- confirmed rumors that he was gay and in a long-term relationship. Seizing on this revelation, those defending the ban filed a motion on Monday to vacate his landmark ruling, claiming he should have recused himself from the case.

Outrage over the motion quickly dominated conversation about the case yesterday, when many on the left argued that Prop. 8 supporters had lowered themselves to homophobic, personal attacks against the judge to save a desperate campaign. Certainly, the entire effort to ban same-sex marriage is based on irrational, anti-gay sentiment, and this latest twist is no exception. But the legal situation is more complex, because it raises a question the judiciary has rarely, if ever, faced: What happens when the judge in a civil-rights case is also part of the minority group whose rights are at stake?

The judicial bench -- traditionally a bastion of privilege and racial homogeneity -- has never been as diverse as it is today. That is, of course, a good thing. But it may signal that minority judges are vulnerable to ethical challenges.

Part of the problem is that the idea of recusal itself is ill-defined. In general, judges are bound by the law to recuse themselves in cases where their impartiality "might reasonably be questioned." For example, Supreme Court Justice Elena Kagan, who formerly worked for the Obama administration, has recused herself from several cases that she was involved with before she joined the Court. In another instance, Justice Scalia came under fire for failing to recuse himself from a case involving his good friend and duck-hunting partner, Dick Cheney. Grounds for recusal are generally narrow. Conversely, according to experts, it is widely acknowledged that a judge's identity alone -- be it gender, sexuality, religion, or ethnicity -- does not disqualify a judge. .............(more)

The complete piece is at: http://prospect.org/cs/articles?article=benching_minority_judges

[Kolesar]

1. Checks and balances in government are designed to protect the rights of minorities from democracy...

...run amok.

The checks and balances failed when the Japanese Americans were "rounded up" seventy years ago and when smokers lost their rights to smoke indoors. I don't smoke, btw.`