Today’s Fresno Bee — I still read the paper edition, but you can find a similar story here — reports that a federal judge, Judge James Ware, refused to invalidate his predecessor Judge Vaughn R. Walker’s ruling on gay marriage on the basis that Walker himself is gay and thus in some way tainted.
Opponents of gay marriage are said to be planning an appeal. I wonder if one of their arguments will be that Judge Ware should have recused himself from ruling on whether Judge Walker should have recused himself.
An argument — equally as ridiculous as the one already used against Judge Walker’s ruling — could be made: Judge Ware and Judge Walker are both judges and both have somewhat similar last names that start with “W” and so Judge Ware might have been biased in favor of anything Judge Walker had to say.
The original argument of California’s homophobic Proposition 8 supporters is the one I’d prefer to focus on here and, since I’m not a judge — and have seldom been a defender of judges — and my name is unlike any of those guys, I’m going to claim no bias on that basis.
On the other hand, I think I’m a libertarian: I am biased against the busybodies who believe there should be laws against people exercising their natural right to live their lives according to their own wishes, unrestrained by the wishes of others.
The not-yet-fully-understood truth of the matter is that bias is a part of being human. It comes in all forms. It’s unavoidable. Any pretense otherwise is just that: pretense.
Consider the irony that this whole case is about bias: bias against the life-choices of a particular group of people — people who may, or may not, really be “choosing,” as that term is traditionally understood, at all.
Getting back to the “bias comes in all forms” statement, the Fresno Bee story says the homophobic group said:
Walker should have disclosed his now 10-year-old relationship with his partner so he could have been asked about his interest in marrying the man.
Should a heterosexual judge have to reveal his heterosexuality so that he could be asked about his possible lack of desire to marry a man, or maybe even about his feelings or his beliefs about such a marriage for others? If the fact of being gay leads to a need for deeper probing, does not the fact of not being gay have the same need? If not, why not?
And why stop there? Republicans like to claim that they are “tough on crime” and unsympathetic towards what Democrats might consider potential defenses — or at least mitigating circumstances — regarding crime. Justice Thomas would seem to be a walking, talking, extreme proof of that. Should judges in criminal cases have to reveal their political party and be subjected to more intensive questioning towards a potential recusal motion based upon their answer?
Is it an accident that under so-called “liberal courts,” our constitutional rights were protected, while under so-called “conservative courts,” they’ve become essentially non-existent? Does the meaning of the Constitution change according to the bias of the court? Or is it just the bias of the court that changes? I don’t think you even have to be an honest person to know the answer to that.
Maybe to admit it; not to know it.
Frankly, there seems to be no denying that such biases affect what rights the courts determine us to have, or not have. Bias impacts not just a court’s decision whether we do or don’t have certain rights, but also whether government has gone too far outside its constitutional bounds, or that it hasn’t, in regulating the exercise of such rights. This liberal/conservative “split” is something we argue about more than virtually anything else in this country — particularly when it comes to government, including our courts. Our greatest efforts are expended to ensure that those who we believe will endorse our views — liberal for liberals; conservative for conservatives — are elected and appointed.
Equally frankly, I can think of no more logical reason why libertarianism should be the controlling paradigm for humanity — particularly for a nation such as ours, whose foundational move was to fight a war to be free from governmental control, and then attempt to enshrine libertarian values in a Constitution. The Founders — who were no doubt biased — clearly intended to create as free a nation as possible. Their key motivation was the idea that every individual (at least, every individual like them) was entitled to “Life, Liberty and the pursuit of Happiness.” To secure this, they said, is why government exists.
Government is necessary — and I do not mean “a necessary evil,” but truly necessary — to ensure life, liberty and the pursuit of happiness to each individual. Only a government can prevent individuals from interfering with the lives, liberty and pursuit of happiness for other individuals without (usually) significant bloodshed.
Given that bias is inherent in being a live person — as opposed, possibly, to some other type of creature and as opposed, definitely, to being a dead person — we should recognize this weakness and adopt a more libertarian approach to the lives of others. We should endorse libertarianism as a modus operandi for our government. Libertarianism makes sense because the idea that a world where what kind of life we can choose, how much liberty we have, and which happiness is okay and which is proscribed is dependent upon the bias of our rulers is illogical.
At least, it’s illogical if, as our Founders said, all of us are created equal and the aforementioned rights are unalienable.
Rick is a criminal defense attorney with an office in Fresno, California. He also writes Probable Cause: The Legal Blog with the Really Low Standard of Review.