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Letter to the Editor of San Francisco Chronicle

February 10, 2010

San Francisco Chronicle

I am writing on behalf of The Bar Association of San Francisco (“BASF”).  BASF is a legal professional membership organization comprised of nearly 8,000 members that works to elevate the standards of integrity, honor, and respect in the practice of law. 

We take issue with Chronicle writer Debra Saunders’ suggestion that “it might have been better” for United States District Court Chief Judge Vaughn Walker to “let some other judge decide” the Proposition 8 case based on an “appearance of conflict.”  Saunders correctly recognizes that Judge Walker had no legal obligation to recuse himself, based on his sexual orientation or otherwise, and acknowledges that there is no mythical “neutral identity—straight? white? male?—that is free from bias.”  In suggesting that California voters “fed up with imperious judicial rulings” might reasonably perceive a conflict in Judge Walker’s hearing the case, Saunders endorses a pernicious double standard.  There is grave danger in legitimizing the idea that a minority, female or gay judge’s personal background makes his or her decisions presumptively suspect in a civil rights case, when no such presumption is made with respect to other judges. 

Judge Constance Baker Motley, an African-American federal judge, explained the issue perfectly in declining to recuse herself from a gender discrimination case thirty-five years ago.  Judge Motley explained that “if background or sex or race of each judge were, by definition, sufficient grounds for removal, no judge on this court could hear this case, or many others, by virtue of the fact that all of them were attorneys, of a sex, often with distinguished law firm or public service backgrounds.”  Applied uniformly, Saunders’ “appearance of conflict” principle would require recusal in a large number of cases in which someone asserted that the judge’s identity or background was relevant, even tangentially.  As Saunders herself seems to recognize, no such standard applies generally, and it would be wrong to apply it here. 

As the Chronicle explained in its editorial:  “A judge’s sexual orientation does not inherently shade his ability to read and interpret the U.S. Constitution with clear-eyed wisdom.”  That is the right message, and legitimizing some assumed public sentiment to the contrary would undermine our judicial system and disserve the people of California.  As Saunders and the Chronicle recognize, Judge Walker has a long and distinguished record as a jurist.  Nothing in that record, or in his handling of the Proposition 8 litigation, suggests that he will not fairly and impartially review the record and reach a decision based solely on the controlling law.  That should be the end of the matter, and we disagree with the suggestion that judges should recuse themselves whenever some members of the public might “perceive” bias based solely on personal characteristics. 


Arturo J. González
BASF President


The Bar Association of San Francisco (BASF) is a nonprofit voluntary membership organization of over 8,000 attorneys, law students and legal professionals in the Bay Area. Founded in 1872, BASF is one of the largest and most dynamic metropolitan bar associations in the U.S., with a long and distinguished record of community action, public service and service to the legal profession.

Questions about media relations, BASF issues currently in the news, San Francisco Attorney magazine, marketing and communications:

Ann Murphy, Director of Communications & Public Relations
(415) 782-9000 x8792

For general communications inquiries:

Sayre Happich, Assistant Director of Communications & Public Relations
(415) 782-9000 x8104