I have tended to steer away from judicial ethics—it has not been my professional forté. But a situation developing in California raises very interesting questions about judicial ethics and the line between private and public lives of judicial officials.  How much personal privacy does a judge give up upon taking the bench?  To an extent, a similar question could be posited for lawyers.

Gay Marriage and a Gay Judge

The judge I am referring to is the Honorable Vaughn R. Walker, a now-retired judge on the U.S. District Court for the Northern District of California. Judge Walker ruled that California’s Proposition 8, a referendum in which a majority of Californian’s casting votes nixed same-sex marriage, was unconstitutional.  The case is now on appeal to the Ninth Circuit Court of Appeals.  Following the adverse ruling and his retirement from the bench, Judge Walker made it known that he was gay and had been in a ten-year relationship another man.  This prompted the appellants in the case—a group of intervenors, including an organization called “ProtectMarriage.com – Yes on 8, a Project of California Renewal”—to file a motion to vacate the trial court judgment on the basis that Judge Walker’s participation in the case created an untenable conflict of interest.  Because Judge Walker is retired, another judge will rule on the motion.

Standards for Judicial Recusal

The basis for the motion to vacate—in effect, a retroactive motion to recuse—is 28 U.S.C. § 455. The general rule under that statute is that a judge must recuse when “his impartiality might reasonably be questioned.” Id. at § 455(a).  There are specific recusal reasons, too, including when the judge “has any other interests that could be substantially affected by the outcome of the proceeding.” Id. at § 455(b)(4). Indiana’s judicial ethics standard is similar to the federal judicial disqualification statute.  See, generally, Rule 2.11, Indiana Code of Judicial Conduct.

The movants’ claim is that Judge Walker was obligated to disclose his long-term, committed relationship at the time he was assigned the case, and that the relationship compelled him to recuse. Unlike lawyers, who operating under the Rules of Professional Conduct, are not so constrained, judges must also take into account the “appearance of impropriety” when considering their ethical duties.

This is an extraordinarily difficult standard for judicial disqualification. In part, it purports to state an objective standard—“might reasonably be questioned”—without providing much of a handhold for deciding who the reasonable questioner might be.  Plus, the appearance of impropriety standard adds an additional layer of uncertainty.  Appearance to whom?

Ordinarily, one might argue that transparency should be the guiding light. If the judge discloses any possible basis for a claim of self-interest, it is up to the parties to either concede that they trust the judge to rule fairly or to advocate for disqualification.  But what if, as in Judge Walker’s case, a when-in-doubt-disclose standard would require the judge to reveal highly intimate details of the judge’s private life?  Here is where the private and the public intersect and where difficult questions arise.

It is important to point out that the standard for judicial disqualification generally focuses on relationships with the parties in the case or some other concrete interest on the part of the judge that might be advantaged or disadvantaged by the outcome. That said, the definition of impartiality in the Indiana judicial code is slightly more expansive: Impartiality denotes “absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintenance of an open mind in considering issues that may come before a judge.”

An Open Mind, Not an Empty One

A judge’s mind will never be tabula rasa with regard to the issues that come before her.  One of the things judges typically bring to the litigation party is a commitment to the common law’s  relative stability: once answered, well-established legal points need not be re-examined in every case.  This is important, among other reasons, so society can predictably structure legal relationships.  Even so, advocates are free to make “good faith argument[s] for an extension, modification or reversal of existing law.” Indiana Rule of Professional Conduct 3.1.  This is one bias judges bring to the bench, albeit one that is more institutional than personal in nature.  As to unclear questions of law, a judge might very well have a preconceived notion about how they should be resolved.  An open mind is not an empty mind, and there is no prohibition on judges thinking about the law and reaching tentative conclusions about questions of law that have not yet been decided.

Judges also bring diverse judicial philosophies to the bench. One need only look at the recent 3-2 Indiana Supreme Court decision in Barnes v. State, No. 82S05-1007-CR-343, to see contrasting judicial ideas about the sanctity of one’s personal dwelling place.  Much has been made in recent years of the constitutional originalism of Justice Antonin Scalia.  And judges will differ philosophically about the correct balance between stability and change when assessing the control of precedent.  Judges are entitled to have a judicial philosophy.  What comes with it might be a general inclination to align with or against the legal position of parties who come before them in specific cases.

A judge’s perspective on settled and undecided questions of law and philosophical approach to judging is simply one aspect of the playing field that advocates must accept once a judge is assigned to a case. Absent a relationship to one of the parties, extra-judicial knowledge of the facts or a concrete interest in its outcome, the final bulwark against judicial partiality is self-scrutiny.  There is inevitably a subjective component to each judge’s consideration of the fundamental threshold question: can I be fair in this case?

Looking for an Unbiased Judge

We now know that Judge Walker was in a stable, same-sex partnership when he presided over the constitutional challenge to Prop 8. Prop 8 had nothing to do with the legality of same-sex partnerships and everything to do with whether those partnerships should be recognized by the State as being of the marriage kind.  Prop 8 is seen as a defense of traditional marriage against the devaluation that is thought by its proponents to come from expanding it to same-sex couples.  The stakeholders in that question are many and their interests are varied.  A judge in a traditional marital relationship might be suspected of having an “interest” in protecting the institution of marriage and, as such, being a stakeholder in the outcome of the case.  Or not.  That same judge might as likely have personal views of the institution of marriage that could easily accommodate expanding the benefits of State recognition to gay citizens.  Is there a judge, straight or gay, who could be expected to have no pre-existing thoughts about the social and constitutional issues presented in the challenge to Prop 8?  I doubt it.  Must any judge assigned to the case, before accepting jurisdiction, have made a public declaration of her state of marriage; the nature of her intimate, non-marital relationships; her broad, pre-existing views of marriage as an institution?  What if she has chosen to live in a non-marital, opposite-sex relationship because she personally devalues marriage?

My point is a modest one: judges do not live cloistered lives. They marry, they pro-create, they vote, they pay taxes, they consume goods and services.  They are as likely as other citizens to develop personal views on important issues of the day.  Without more, those pre-existing views should not be disqualifying considerations so long as the judge can, in good-conscience, look in the mirror and declare that she will give even-handed consideration to the views of the parties to a particular case.

That said, line-drawing is very difficult. When he was a lawyer in 1982, Judge Walker represented the United States Olympic Committee in a copyright infringement case against an organization calling itself the Gay Olympics.  (He won the case for his client, by the way.)  Had he been the judge, would he have been required to inform the parties that he was gay?  Must a judge presiding over a case raising issues about abortion disclose that she or, perhaps, her daughter had an abortion?  What about judges who have strong religious beliefs?  A judge who might think, for example, that divorce is a sin in her belief system?  The list is endless.

Lawyers, Self-Interest and Client Loyalty

Lawyers aren’t immune from similarly troubling questions about the intersection between private and professional lives. As a lawyer was Judge Walker required to inform USOC that he was gay before accepting the case against the Gay Olympics?  Lawyers, too, have private lives and the point at which their private lives might impact client representations raises interesting questions, as well.  In some ways, the lawyer’s lot is simpler than the judge’s.  All the lawyer needs to do is turn down the new engagement with no statement of reason.  Not so the judge, who, once assigned, is responsible for the case and must do something affirmative to be relieved of the assignment.  The recusal need not state reasons, but there is a general responsibility on the part of judges to handle the cases they are assigned absent good reason.  See, Rule, 2.7, Indiana Code of Judicial Conduct.  But unlike a judge who still gets paid the same regardless of recusal, when a lawyer turns down a case, there is a direct financial penalty.  The test for the lawyer is going to be whether there is a signficant risk that the representation of the client would be materially limited by the lawyer’s personal interests.  Rule of Professional Conduct 1.7(a)(2).

Ethical Imperatives and Self-Assessment

With regard to Judge Walker’s service on the Prop 8 case, this much seems clear: if he and his domestic partner had a concrete, not theoretical, interest in institutionalizing their relationship in California through marriage, the judge would have had a sufficient legal stake in the outcome of the case to warrant recusal.  Beyond that, the case is a fascinating touchstone for pondering what rights to personal privacy judges give up when they don their black robes and lawyers give up when they move from the realm of private citizen to legal professional.

For both judges and lawyers, there are ethical imperatives that require us to set aside personal interests in service of the causes of just outcomes and client loyalty, respectively. For judges, it is the duty to uphold and apply the law and to do so fairly and impartially.  Rule 2.2, Code of Judicial Conduct.  For lawyers, it is separation between the lawyer’s advocacy and the lawyer’s personal interests.  Rule of Professional Conduct 1.2(b).

We live in a time of great mistrust of judges, lawyers and the institutions where they interact, but there has to be a point at which judges and lawyers alike should be trusted to act ethically even when their personal views might be at odds with the justness of a case or a client’s interests. It seems to me that somewhere between a naïve belief that people are always capable of overcoming self-interest and a cynical view that self-interest can never be surmounted, lies a territory defined by duty to profession.  Somewhere in that middle ground lies a zone of personal privacy that should remain largely off-limits to intrusion in the professional sphere.

Whatever the outcome of the Prop 8 motion to vacate, we will only know how these difficult questions were answered in one case, under one set of circumstances. That outcome will, at most, shed a mere sliver of light on where the line should be drawn between the private and professional lives of judges and lawyers.  Each case will raise its own challenges.  And in each case, the lawyers will have to answer the question: will my personal beliefs materially limit my duties to my client; and the judge will have to answer the question: can I fairly and impartially decide this case.