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Friday, August 6, 2010

Judge Vaughn Walker Targeted for Impeachment

Posted By on Fri, Aug 6, 2010 at 4:15 PM

Judge Vaughn Walker is not universally popular these days
  • Judge Vaughn Walker is not universally popular these days
In an effort to undermine Judge Vaughn Walker's Prop. 8 ruling, the American Family Association is leading a campaign to impeach the jurist. The right-leaning pro-family organization states in a letter on its website that Walker should not have been allowed to hear the case in the first place.

Bryan Fischer, the AFA's director of issue analysis, tells SF Weekly that Congress must step in and overrule the Judicial Branch of government because "federal judges are out of control."

Besides arguing that Walker wanted to turn himself into a star by televising the trial, the AFA cites two reasons Judge Walker was unfit to preside:

  • Since marriage is not explicitly mentioned in the Constitution, related policy questions are within state jurisdiction
  • Since Walker is purportedly homosexual, his hearing this case presented a conflict of interest

Legal scholars contacted by SF Weekly did not give much merit to these arguments.

Regarding marriage rights, these have always been decided via federal courts because of the  involvement of the federal due process clause, says Douglas NeJaime, an associate professor of law at Loyola University in Los Angeles. 

In the middle of the 20th century, federal courts -- and eventually the Supreme Court  -- ruled that state laws restricting interracial marriage were unconstitutional, NeJaime continued. So even though marriage law is indeed traditionally considered state territory, "it doesn't mean states can regulate it outside the bounds of federal constitutional guarantees."

click to enlarge Erwin Chemerinsky
  • Erwin Chemerinsky
Erwin Chemerinsky, dean and professor at UC Irvine's Law School, agrees. "The U.S. Supreme Court has said for decades that the Constitution protects the right to marry." Therefore, deciding whether marriage rights should be extended to gay and lesbian couples is federal territory.

Regarding the judge's sexuality, Adam Winkler -- a professor of law at UCLA  -- says the argument is  "absurd." He compares the argument to one used against black judges when they were first appointed to federal court positions. They were often accused of favoring black plaintiffs -- therefore qualifying for a recusal -- and insinuating that white judges were the only neutral candidates. "Who do they want to rule on the case?" questions Winkler. "A heterosexual person with strong Catholic beliefs? Are they neutral?"

It warrants mentioning, however that when it was first announced that Walker had been assigned to the case, gay rights activists expressed concern that he was too conservative to impartially consider gay issues.

Loyola University's NeJaime also believes the argument has no legal bearing. "We all have sexualities. ... If sexuality is the marker that determines one's bias here, then everyone would have a bias. That can't be true."

If there was a legitimate conflict of interest, the concern should have been raised and explored during the trial, continues DeJaime. It's too late to pull the bias argument now.

The professors all agreed the impeachment efforts won't fly with Congress. If, for some reason, it does, Chemerinsky thinks "it'll be the gravest threat to judicial independence in American history."

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