Home > Law, Right-Wing Hypocrisy > NOW They’re All About Conflict of Interest

NOW They’re All About Conflict of Interest

August 10th, 2010

Note: sorry I’ve been away for 3-4 days. End of the semester and the usual intense grading period intervened. Back to the fun:

Another case of astonishingly naked hypocrisy from the right wing: the judge who ruled that California’s Prop 8 (banning gay marriage) was unconstitutional is rumored to be gay, so his ruling is invalid and he should be impeached.

But it didn’t bother them at all that a judge ruling to overturn a moratorium on offshore drilling had investments in the oil industry.

And if the judge ruling on Prop 8 had been a conservative Christian with a history of antipathy toward gays, they would not have had a problem.

Remember the ruling on Intelligent Design in Dover, PA? The judge was a Bush 43 appointee, a Christian, and had a conservative track record; as a result, the right wingers, before the trial, were confident that he would rule for them–they had no problem with his politics or religion beforehand, despite both of those playing a role in the case. It was only after he ruled against ID that they turned on him, viciously–just as they are now howling over Judge Walker.

But are they right in this case? Assuming the judge is in fact gay, was there indeed a conflict of interest?

The answer has to be “no,” just as there was no conflict in the Dover judge’s case. Your identity should not be something that can recuse you, or else judges would be recusing themselves right and left. Male judges should not recuse themselves in rape cases, nor should female judges. Christian judges need not recuse themselves in establishment cases, nor should atheist judges. It could be argued that both white and minority judges ultimately have personal interests in judging discrimination cases–thus no one would be fit to rule on them. In cases such as these, we must trust the judge to be impartial, else no one could judge anything. It is only when a judge has a specific interest–a financial investment or a personal friendship, for example–that they should recuse themselves. But not simply because they belong to a class that could be affected by the law in question.

The whole indignation on the right about this judge’s alleged sexual orientation–despite the fact that he was a Reagan appointee and has been inhospitable to gays in the past–is nothing more than standard right-wing hypocrisy: any decision we don’t like is judicial activism and is wrong, no matter what; any decision we like is OK, no matter how legally twisted. They want the Scalia/Thomas brand of justice: legislate a conservative mindset from the bench, ignoring the actual law whenever it becomes inconvenient.

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  1. Troy
    August 10th, 2010 at 10:48 | #1

    “If the law is against you, bang on the facts. If the facts are against you, bang on the law. If both are against you, bang on the table.”

    Unfortunately “bias” will in fact determine which way stuff like this is decided since the right to get married regardless of gender is a novelty not explicitly covered in the foundation of our legal system.

    Much like the right to use contraception (and personal privacy in general), it has to be carved out of new wood and “penumbras” of recognized existing rights.

    Social conservatives will simply throw out the inequality aspect, just like they denied the inequality aspect in mixed-race marriages by asserting the law affected “both” races (whites could not marry blacks and blacks could not marry whites — equality!).

  2. Geoff K
    August 10th, 2010 at 10:52 | #2

    Or maybe they just want a Judge who will respect the expressed wishes of the voters and not arbitrarily substitute his own judgment for theirs? Or Judges that actually rule based on precedent and written law rather than on “emanations” and “penumbras”?

    Nah, must just be “standard right-wing hypocrisy”.

    And, if this Judge really *is* homosexual, it certainly mans that he is ruling on something that he has a significant personal interest in. Whether or not it influenced his decision, it creates at least a possible appearance of impropriety, and it would have been appropriate for him to recuse himself.

    But then we’d be back in a democracy where the majority decides things instead of unelected Judges. Better to have him governing from the bench instead. Or so you seem to think…

  3. Troy
    August 10th, 2010 at 11:06 | #3

    Or maybe they just want a Judge who will respect the expressed wishes of the voters and not arbitrarily substitute his own judgment for theirs?

    You mean not execute the longstanding powers, prerogatives, and Constitutional duties of their office? What about Marbury v Madison do these morons you like to speak for don’t understand?

    A democratic majority can never be allowed to remove the rights of a minority without due process, and due process requires several JUDICIAL tests — including rational basis and undue burden, plus the explicit guarantees and legal logic of Constitutional and common law rights.

    The proponents had the opportunity to defend the rational basis of the law they promoted to the State Constitution and they failed because they can’t.

    This was just a naked attempt, by religious conservatives, in their campaign against recognizing the validity of and rights in being a homosexual person in this state.

    Or Judges that actually rule based on precedent and written law rather than on “emanations” and “penumbras”?

    The Constitution does not give us our rights. It delineates the specific powers of the Federal government that LIMIT these rights, and, wisely, has the Bill of Rights to explicitly guarantee certain rights against Federal (and, usually, state) infringement.

    Again the hypocrisy is reeking. Conservatives are generally quite happy with Scalia’s Heller decision, which created gun rights for self-defense out of new cloth, rights that all previous juridical examinations had missed over the previous 200 years.

  4. Troy
    August 10th, 2010 at 11:16 | #4

    But then we’d be back in a democracy where the majority decides things instead of unelected Judges. Better to have him governing from the bench instead. Or so you seem to think…

    Let’s explore this thought some more.

    What don’t you understand about how a Constitutional Republic, separation of powers, judicial review review is supposed to function?

    A “majority” can decide things in a direct democracy without any Constitutional protection. But this is not a direct democracy, we have a system of government with many built-in checks and balances.

    This judge is not governing from the bench, he is performing his Constitutional duties in applying the Law. This was something of an American invention and in general has served us pretty well over the years, with much more good than bad resulting from its application.

    Both Gov Schwarzenegger and Attorney General Brown agree with this judge. 52% of the voters two years ago overstepped their rights and turned into a mob exercising a form of the tyranny of the majority against homosexual partners desiring the same legal standing as traditional married partners.

    Conservatives can be counted on to fight for the traditional, while liberals (both in the old sense and in the modern usage) can be counted to fight for what’s right. This is one of the more dramatic, and clearer examples.

  5. Troy
    August 10th, 2010 at 11:20 | #5

    And I’m getting a visceral reaction that a person like you is actually defending this crap from such a position of either abject ignorance or cynical demagoguery.

    I don’t know which is worse, really. Defend your position or bugger off.

  6. Luis
    August 10th, 2010 at 11:39 | #6


    So, you have no problems with the tyranny of the majority? Hmm. Interesting.

  7. Luis
    August 10th, 2010 at 11:42 | #7

    Afterthought: electing Obama was the will of the people. And through representation, so is everything that Democrats have pushed through Congress in the past few years.

    I don’t think there was much respect for that on the conservative side. Not that I expect consistency, but…

  8. August 10th, 2010 at 11:43 | #8

    For what it is worth, this is not a liberal/conservative divide. Libertarian conservatives are quite satisfied with this ruling, both in content and reasoning. It is the religious right that has their panties all bunched up about it. And it was passed primarily by the religious right and the rarely mention religious left if I recall correctly.

    Or, shorter version : He ain’t with me.

  9. Troy
    August 10th, 2010 at 12:44 | #9

    “and the rarely mentioned religious left”

    Given that Bush’s strongest deme in 2004 was religious folk, and the correlation between church attendance and voting Republican is near 1.0, there’s not much of a religious left these days.

    Now, Hubert Humphrey, McGovern, Carter, Mondale, Edwards could be considered the front rank of the religious left, with Martin Sheen being a popular media proponent.

    Sheen was against Proposition 8 and everybody else in the religious left is either done died or well out of politics now.

    Perhaps you have some evidence that the religious left also supported Proposition 8?

    “Unable to persuade California voters, the Religious Left and homosexual activists are again hoping the court will overturn democracy and impose its imperial will.”

    sorta blows away that part of your IIRC.


    The Pro-8 people certainly grouped themselves into the biggest nutball agglomeration this country has ever seen. We’re fighting the Taliban in Waziristan AND California. Different names, same insanity.

  10. August 10th, 2010 at 13:30 | #10

    Big name religious left? I don’t track the names so I don’t know. Maybe we mean different things? I mean strongly religious Democrats.

    Hispanics are overwhelmingly Catholic and generally left leaning. Minorities in general are pretty religious, and left leaning. Prop was supported by a majority of minorities. (that’s a funny sentence)

    Some demographics here : http://www.ppic.org/main/pressrelease.asp?p=896
    More comprehensive here : http://en.wikipedia.org/wiki/California_state_elections,_November_2008 (yeah, wiki, I know, but good overview)

    It has to be remembered that this was on the same ballot, and voted on by the same voters, as the 8 to 5 Obama blowout. This was NOT a Republican thing. Only about 60%(ish) of the votes for passing the resolutions came from Republicans.

    ps. Virtue Online? Really? I don’t read the crazies. What if it’s catching?

  11. Geoff K
    August 10th, 2010 at 13:54 | #11

    Actually, as a Libertarian, rather than a Pat Robertson Republican, I’m of two minds about this decision. On the one hand, I don’t like to see discrimination or unnecessary regulation. On the other hand, “Marriage” is not just an arbitrary concept, to be applied to any situation. It does have thousands of years of history and meaning. And it’s the basis for families and raising children. In a society where divorce and unmarried mothers are huge problems, chipping away further at the concept of marriage strikes me as a bad idea. And there are financial and legal implications as well. In short, a majority of people, for rational, legitimate reasons, could decide that “Gay marriage” was a bad idea.

    Sometimes a majority of people make bad decisions, which is why Obama is President and Pelosi is Speaker. I don’t like those decisions, but I don’t want to see a non-democratic coup to replace them. I’m willing to let the majority fix their mistakes the same way that they made them –through the democratic process. (For Congress, that should happen in just a few weeks.)

    Judicial legislation and activism short-circuit this process. Much of the trouble with abortion since 1973 is that the Supreme Court removed the whole issue of abortion from democratic discussion. States couldn’t pass laws that matched local mores and minor restrictions became constitutional issues. Rather than arising from the desire of the majority, it was forcibly imposed upon them. Perhaps in a few cases, such as racial discrimination, that is appropriate. But, for the most part, it is a dangerous and flagrant abuse of power.

    Of course, I understand judicial review. But the price judges pay for the power to review legislation is not to write it themselves. Judicial activists say “We don’t really have a law that says X — so I’ll just declare the law to be X and that’s the way it is”. It’s a complete misreading of a judges role. And it’s a misreading that Democrats love to encourage, because their agenda is too unpopular to be enacted any other way.

    Your last argument is “This isn’t really judicial activism. It’s just protecting the constitutional rights that the majority tried to take away through an unconstitutional law”. If this was black and white discrimination, maybe I’d buy that. But lots of States still have Sodomy laws on the books. There is no historical legal basis for a right to Gay sex, let alone Gay marriage. And even if Gays have a right to a lifetime partner, declaring that Gay and straight marriage is identical is simply contrary to fact. In short, he’s creating rights where none existed before and radically redefining important institutions in a way that the majority of voters rejected.

    This will probably go all the way to the Supreme Court. Where every liberal member will affirm it, every conservative member will oppose it, and Kennedy, who is unpredictable but favors Gay rights, will affirm the deciding vote.

  12. Troy
    August 10th, 2010 at 14:03 | #12

    “This was NOT a Republican thing”

    Yes it was, mostly. The Religious Right is the foundational centerpiece of the present Republican coalition. Without them Republicans would be a regional party, on the scale of the American Party of 1968 and 1972.

    And gay people are in the Religious Right’s crosshairs. In a moment where the smiling mask came off, one of their former institutional mouths had this to say:

    “And, I know that I’ll hear from them for this. But, throwing God out successfully with the help of the federal court system, throwing God out of the public square, out of the schools. The abortionists have got to bear some burden for this because God will not be mocked. And when we destroy 40 million little innocent babies, we make God mad. I really believe that the pagans, and the abortionists, and the feminists, and the gays and the lesbians who are actively trying to make that an alternative lifestyle, the ACLU, People For the American Way — all of them who have tried to secularize America — I point the finger in their face and say “you helped this happen.”

    Ken Starr, leading conservative Republican and Inquisitionist of the right, put himself in position to defend Prop 8.

    Schwarzenegger is notable among Republicans for opposing Prop 8. He’s a real moderate in this department, to the left of Obama, LOL.

    Bigotry against gays is part and parcel with the Catholic and Mormon Pro-Life positions, positions also staked out by the national Republican coalition. Pro Life people are single-issue voters and are thus captured by the Republicans, regardless of the overall left-right divide in other issues.

    But it can be said that the minority vote put Proposition 8 over the top, as there is in fact a great deal of anti-gay bigotry present in the African-American community.

    Demonizing the gays is a Republican core value. Own it, don’t try to bull— it.

    The legislative history of the Federal Marriage Amendment is not something you can run away from.


    The Bush Administration went as far as to pay the media to support this amendment:

    The Department of Health and Human Services paid Maggie Gallagher $21,500, and Mike McManus $49,000, to write syndicated news columns endorsing the FMA.[28][29] Additionally, Gallagher also received $20,000 in 2002 and 2003 to write a report on government initiatives to strengthen marriage. McManus leads a group called “Marriage Savers” promoting marriage as defined between a man and a woman.[30]

  13. August 10th, 2010 at 14:13 | #13


    “Discrimination” is not just an arbitrary concept, to be applied to any situation. It does have thousands of years of history and meaning. Throughout essentially the entirety of human existence treating outsiders as subhuman has been the accepted norm. There was no historical basis to overturn it.
    Works just as well with one word changed…

    So what? It is still wrong.

    The 14th says the rules are the same for everyone. Period.

    You wanna get married, fine.
    They wanna get married, fine.

    What is hard to understand here?

    As for majority rule? Where basic rights are concerned, overriding majority rule is their job. And yes, equality under the law is a basic right. Not marriage, not housing, not employment; those are the expressions of the right, but equality IS the right.

    (I do agree with your analysis of the supreme court’s likely decision, with the possible exception of Thomas.)

  14. Troy
    August 10th, 2010 at 14:14 | #14

    chipping away further at the concept of marriage strikes me as a bad idea.

    Good. Now you have to demonstrate that elevating gay partnerships to the traditional concept of marriage is doing any such thing.

    And there are financial and legal implications as well

    Irrelevant since fundamental rights — life, liberty, and the pursuit of happiness — are superior to the details and implications. The financial and legal details exist to preserve the rights, NOT THE OTHER WAY AROUND.

    But lots of States still have Sodomy laws on the books. There is no historical legal basis for a right to Gay sex, let alone Gay marriage. And even if Gays have a right to a lifetime partner, declaring that Gay and straight marriage is identical is simply contrary to fact.

    LOL, as a libertarian you should know all about Lawrence, and Scalia’s fear that reversing Bowers would make sex outside of marriage a protected right of the people not subject to the will of the majority.

    For a libertarian you’re running with some pretty authoritarian sh–heads. Scalia’s dissent in Lawrence was a joke, and Thomas’ separate dissent that since the Constitution did not explicitly protect the right to privacy in sexual matters the people did not have one was rather horrid, considering the wording of the 9th Amendment.

    But making the Ninth Amendment a “dead letter” (in Justice Bork’s indelible phraseology) is a continuing effect of the conservative position in this country.

  15. August 10th, 2010 at 14:19 | #15

    Troy, not trying to dodge the GOP history on gay rights. The 77% yes vote was shamefull. But it is not the whole story, or it could not have passed in California of all places. As for Ken Starr, the less said the better.

  16. Kensensei
    August 10th, 2010 at 14:52 | #16

    “Marriage” is not just an arbitrary concept, to be applied to any situation. It does have thousands of years of history and meaning. And it’s the basis for families and raising children.”

    Oh, please! Some of us are only looking at half of human history.

    Is there anyone alive today who still doesn’t recognize that homosexuality has also existed for thousands of years? Do I really need to point out that “Gayness” is not a new concept? Admittedly, Gays have been hiding in the closet for centuries, but understanding WHY they have been in the closet is not such a stretch…Is it because Gays WANT to be in the closet? Let’s get real.

    Gays have been part of the “closet society” for so long mostly because of the “Sodomy laws” and centuries of a “Tyranny of the Majority” mentioned earlier. Persecution and humiliation of Gays has historically been the norm. Although Gays have always existed, they have always been in the minority, so their views on marriage have rarely been taken seriously. Hence, one can only hope that one fine day, the human species will wake up to the fact that Gays do exist, and have always existed, that they have normal emotional needs, that they fall in love, that they have rights, and that they are NOT going to fade away.

    In short, I believe it is high time the straight majority’s recognize Gays for who they are and grant them equal rights (e.g., marriage), regardless of what most straights may feel about their lifestyle. This is not a ethics issue as much as a HUMAN RIGHTS issue.

    Let’s stop using the “Marriage is about having kids” excuse and look at the situation realistically.

  17. Troy
    August 10th, 2010 at 16:06 | #17

    Let’s stop using the “Marriage is about having kids” excuse and look at the situation realistically.

    The religious basis of opposition can ignore all that since God was against gays and that’s good enough for them.

    James Madison had something to say about the tyranny of the majority, namely that he trusted that with sufficient checks and balances, no majority could in fact form to significantly “terrorize” a minority.

    He did not anticipate the joining together of the religious nutjobs in this state — the Mormons (and their money), the “pro-family” Catholics, the End-timer Fundamentalists, “urban” Pentecostalists, etc:

    “The effort in California represented the emerging face of a new type of fundamentalism in America that is multiethnic, multiracial and, because of that, can appear pseudo-progressive but which is in many ways farther right than traditional fundamentalism. The new axis of bigotry is no longer defined by racial and ethnic distinctions. It is religious supremacy.”


    Gays just got totally worked by this coalition of hate.

    Madison in Federalist 51:

    “It is of great importance in a republic not only to guard the society against the oppression of its rulers but to guard one part of the society against the injustice of the other part. If a majority be united by a common interest, the rights of the minority will be insecure.”


    “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

    Madison to Jefferson, 1787:

    “[our hope in preventing the tyranny of the majority] is that no common interest or passion will be likely to unite a majority of the whole number in an unjust pursuit. In a large Society, the people are broken into so many interests and parties, that a common sentiment is less likely to be felt, and the requisite concert less likely to be formed, by a majority of the whole. The same security seems requisite for the civil as for the religious rights of individuals. If the same sect form a majority and have the power, other sects will be sure to be depressed. Divide et impera, the reprobated axiom of tyranny, is under certain qualifications, the only policy, by which a republic can be administered on just principles.”


    “The idea that religion and politics don’t mix was invented by the Devil to keep Christians from running their own country.” — Jerry Falwell (on July 4, 1976 no less)

    The issues are stark. This battle against the conservative right is not yet won. But it is interesting. I just wish I was watching with the popcorn from Japan, or Canada.

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