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Opinion: Prop. 8: Double-edged diversity

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Should the federal judge who struck down Proposition 8 have his ruling nullified because he’s in a relationship with a man? The easy answer is no. This is just a variation on the argument that Judge Vaughn R. Walker should have recused himself from the case because he’s gay. It’s no more valid than the first argument.

But the conservatives challenging Walker’s role in the case are, ironically, drawing on a theory of diversity more often heard from liberals. The argument goes something like this: Having a judge who is African American or a woman or a ‘wise Latina’ changes the way justice is administered. Life experience, in this view, is a valuable credential.

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Now apply this theory to a gay judge: If you argue that his or her life experiences play an important role in how they behave on the bench, you’re playing into the hands of the conservatives who would disqualify Walker.

There are other arguments for diversifying the bench. One is the role model theory. Appointing or electing members of a minority group encourages members of that group to aspire to a judicial career. Then there is the the most traditional argument for diversity: redressing past discrimination.

But the ‘diversity does as diversity is’ argument is the most beguiling. It’s also the most problematic.

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