Legal Briefing: Yes, the Prop. 8 Judge Is Gay -- but Don't Cry 'Bias' Just Yet

A daily look at legal news and the business of law:

Bias vs. Bias: Judge Walker Is Gay -- and Conservative

In the wake of federal Judge Vaughn Walker's ruling that California's Proposition 8 gay marriage ban violated the U.S. Constitution, gay marriage opponents haven't attacked the judge's reasoning: Instead, they've attacked the judge. Judge Walker is gay, and Prop. 8 supporters now suggest that his sexual orientation means he was so biased that their side never had a chance. However, it's worth noting that the gay marriage opponents never asked Judge Walker to recuse himself, as they had the right to do if they believed he was biased, which somewhat undercuts the charge now.

As I wrote in a DailyFinance column some months ago, research does suggest that race and gender can have a meaningful impact on judicial outcomes. Of course, assuming that those different outcomes are "wrong" means that the law has a white male bias. If most judges were black or women, we'd note that white men sometimes had different results from the average, too. Nonetheless, it's not unreasonable to imagine that being gay had some influence on Judge Walker's thinking.

However, a major influence on judicial decision-making that everyone takes for granted is the political philosophy of the president who nominated the judge in the first place. Republican presidents generally nominate more conservative judges than Democrats do. "Elections have consequences," as Sen. John McCain once famously quipped.

Judge Walker was first nominated by President Ronald Reagan, and was confirmed after re-nomination by President George H.W. Bush. Indeed, the Senate rejected Walker when Reagan nominated him because he was seen as too conservative. Presumably being gay and being a Reagan/Bush nominee would be seen as opposing biases that would tend to cancel each other out in this case.

Ultimately, there's only one way to spot judicial bias: Look at the decision. Is the reasoning sound and supported by the record? In this case, the answer is a clear yes.

Kagan Confirmed as a Supreme Court Justice

Elena Kagan was confirmed Thursday by a 63-37 vote: Five Republicans voted for her, and one Democrat against, but every other vote was along party lines. Although Kagan is not expected to shift the court's ideological balance much, her confirmation is potentially transformational in other ways: She makes the court one-third female for the first time, and is the court's only member without a judicial background. Moreover, her youth suggests Kagan will have the opportunity to shape the court over time.

Kagan is no stranger to the other eight justices; besides knowing them through her job as the solicitor general, she has a long and warm friendship with Justice Ruth Bader Ginsburg. In the days just before the confirmation vote, theU.S. Chamber of Commerce chose to neither support nor oppose her. That's interesting, because the Chamber rarely does that: It officially supported almost all the other current justices. And although as solicitor general, Kagan opposed the Chamber's position nine out of 10 times, the resulting losses for the Chamber came due to the votes of conservative Justices Antonin Scalia and Clarence Thomas.