Disclosure Delayed Is Justice Denied
The judge who threw out Prop 8 should have been disqualified.


Ed Whelan

In taking part in the Perry case, Judge Walker was deciding whether Proposition 8 would bar him and his same-sex partner from marrying. Whether Walker had any subjective interest in marrying his same-sex partner — a matter on which Walker hasn’t spoken — is immaterial under section 455(a). (If Walker did have such an interest, his recusal also would be required by other rules requiring that a judge disqualify himself when he knows that he has an “interest that could be substantially affected by the outcome of the proceeding.”) Walker’s own factual findings explain why a reasonable person would expect him to want to have the opportunity to marry his partner: A reasonable person would think that Walker would want to have the opportunity to take part with his partner in what “is widely regarded as the definitive expression of love and commitment in the United States.” A reasonable person would think that Walker would want to decrease the costs of his same-sex relationship, increase his wealth, and enjoy the physical and psychological benefits that marriage is thought to confer.

Because Walker was deciding how the law in the very jurisdiction in which he lived would directly govern his own individual rights on a matter that a reasonable person would think was very important to Walker personally, it is clear that Walker’s impartiality in Perry “might reasonably be questioned.”

At the same time that he disclosed his long-term same-sex relationship, Walker stated — according to a reporter’s paraphrase — that it “would not be appropriate for any judge’s sexual orientation, ethnicity, national origin or gender to stop them from presiding over a case.” The article quotes Walker as declaring, “That’s a very slippery slope.” But Walker’s slope is “very slippery” only for greased red herrings. Walker vastly overstates the principle that requires his recusal. The proposition that a judge should not decide how the law in the jurisdiction he lives in would directly govern his own individual rights on a matter that a reasonable person would think was very important to him personally is much narrower than the proposition that a judge of a particular sexual orientation, ethnicity, national origin, or gender may not decide any case involving those issues. The former proposition flows directly from section 455(a); the latter doesn’t.

To those who resist the conclusion that Walker’s impartiality “might reasonably be questioned” under section 455(a), I ask: What additional facts, if any, would alter your assessment? What if, for example, Walker and his partner had agreed that they would marry if Proposition 8 were defeated in the November 2008 election? 

A judge also has an obligation to disclose to the parties information that they might consider relevant to the question of disqualification. That disclosure enables a party to identify other information that might bear on the question and to decide whether to move to disqualify the judge. It also enables a party to make an informed judgment whether to waive a judge’s obligation to disqualify himself under section 455(a). Indeed, the waiver provision explicitly states that “waiver may be accepted provided it is preceded by a full disclosure on the record of the basis for disqualification.”

Anyone whose assessment of the recusal question might be altered by additional facts should have in mind that it was Walker who, by not disclosing to the parties at the outset of Perry that he was in a long-term same-sex relationship, effectively foreclosed any inquiry into additional facts. Indeed, it is reasonable to suspect that Walker failed to disclose that information precisely because he was concerned that it would require his recusal or invite unwelcome follow-up inquiries. Walker’s failure to live up to his disclosure obligation thus provides yet another reason why a reasonable person, with the benefit of Walker’s belated disclosure, would have ample cause to question his impartiality.

Now that Walker has finally disclosed facts that would have warranted his disqualification from Perry, the appropriate remedy is for the Ninth Circuit — or, if necessary, the Supreme Court — to vacate Walker’s judgment upon a request by Prop 8 proponents. As the Supreme Court ruled more than two decades ago in Liljeberg v. Health Services Acquisition Corp. (1988), where a district judge has violated section 455(a) by deciding a case that he should have disqualified himself from, it is “appropriate to vacate the judgment unless it can be said that [the losing party] did not make a timely request for relief, or that it would otherwise be unfair to deprive the prevailing party of its judgment.” In that case, the losing party did not learn of the facts requiring disqualification until ten months after the court of appeals had affirmed the district court’s judgment, so the question was whether the judgment that had become final on appeal should nonetheless be set aside. The Court found the request for relief to be timely, as the delay was attributable to the judge’s failure to disclose the facts requiring disqualification. A request now by Prop 8 proponents to vacate Walker’s judgment would indisputably be timely (and would clearly not involve any unfairness to the Perry plaintiffs), as the appeal on the merits is still pending, and Walker has only now revealed the information requiring his disqualification.

It’s time to vacate Walker’s Prop 8 ruling and put a fitting end to his rampant course of misconduct.

Edward Whelan is president of the Ethics and Public Policy Center and is a regular contributor to NRO’s Bench Memos blog.