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Confused Defenders of Vaughn Walker’s Failure to Recuse—Part 1



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In the week since Prop 8 proponents filed their motion to vacate former district judge Vaughn Walker’s anti-Prop 8 judgment on account of his failure to recuse himself from the case, there has been a rash of woefully ill-considered commentary from defenders of Walker. I will respond to this commentary in a series of posts (all today, I hope). In this first post, I will show that nearly all of Walker’s defenders have failed to acknowledge, much less confront, the actual argument that Prop 8 proponents have made.

Invoking the maxim that “no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome,” Prop 8 proponents have argued that Vaughn Walker was required to recuse himself from the anti-Prop 8 case because his long-term same-sex relationship in California meant that a reasonable person would believe that he had a “significant legal interest” at stake in the case: “Simply stated, under governing California law, Chief Judge Walker currently cannot marry his partner, but his decision in this case, and the sweeping injunction he entered to enforce it, would give him a right to do so.”

In other words, the essential proposition that Prop 8 proponents are advancing is that a judge can’t confer on himself a valuable legal right that he has a strong and particular interest in exercising. Under the objective disqualification standard set forth in 28 USC 455(a), that means that a judge must recuse himself from a case that presents him the opportunity to confer on himself a valuable legal right that a reasonable person would believe the judge has a strong and particular interest in exercising.

Of all the commentary that I have reviewed so far from critics of Prop 8 proponents’ motion, all but one of the critics fails even to recognize this core proposition. These critics claim that Prop 8 proponents’ position would have all sorts of unacceptable logical implications, but the implications they posit all derive from their failure to recognize what Prop 8 proponents’ actual argument is.

The one defender of Walker’s non-recusal who evidently recognizes, and agrees with, the general proposition that a judge can’t confer on himself a valuable legal right that he has a strong and particular interest in exercising is law professor Stephen Gillers,. Here’s part of what Gillers wrote to Media Matters (emphasis added):

The fact that Walker is gay standing alone is not a basis for recusal. The fact that he is in a long term relationship with another man also is not by itself a basis for recusal. The relationship could have been a basis for recusal IF (I stress “if”) Walker wanted to marry his partner AND wanted to do so in California, but Prop. 8 stood in his way. He should not then have ruled on the single impediment to his goal of marrying in California.

As I will show soon in my Part 2 post, Gillers wrongly contends that a reasonable person wouldn’t believe that “Walker wanted to marry his partner AND wanted to do so in California, but Prop. 8 stood in his way.” But for present purposes, I want to highlight that Gillers gets the general proposition right—and that Walker’s other defenders, rather than disputing it, resort to mischaracterizing what Prop 8 proponents are arguing. I expose the confusion of these other defenders—Erwin Chemerinsky, Monroe Freedman, Adam Serwer, and Howard Wasserman—below the fold.

Law professor Erwin Chemerinsky contends that Prop 8 proponents’ position “would mean that no African-American judge could have heard a challenge to segregation laws or no woman judge a challenge to a law discriminating based on sex.” But that general contention is clearly wrong. It is not the case that “a challenge to segregation laws” would typically call for the African-American judge to decide whether or not to confer on himself a valuable legal right that the judge has a strong and particular interest in exercising. Take, for example, a claim that schools in a particular school district are racially segregated. Just for starters, there would presumptively be no basis, under Prop 8 proponents’ position, for recusing an African-American judge who had no school-age children or who lived in a school district that wasn’t segregated. Further, it’s far from clear, as a matter of abstract principle, that recusal would be called for if an African-American judge had school-age children and lived in a segregated school district that was not involved in the case. The question would likely turn on highly particularized facts (e.g., commonalities or differences between the school district that the judge lives in and the defendant school district). The judge’s disclosure of the possibility of a conflict would be the appropriate means for sorting through the relevant recusal issues.

Prop 8 proponents’ position would likewise not have the sweeping impact that Chemerinsky blithely asserts in cases involving laws discriminating on the basis of sex. Take, for example, a law barring women from entering a certain profession. Except in the extremely rare circumstance that a life-tenured female judge had a clear interest in entering that profession, the case would clearly not be asking her whether or not to confer on herself a legal right that she was interested in exercising. Or take the VMI case. Except in the rare case in which the judge was seeking to send her daughter to VMI, there would be no basis for recusal under the proposition that Prop 8 proponents are advancing (and even in that rare case, the recusal obligation would fall equally on male and female judges).

Law professor Monroe Freedman similarly offers this series of baseless contentions:

If [Prop 8 proponents] were correct, for example, no member of religious group that actively opposes homosexuality or same-sex marriage could sit on the [Prop 8] case. Nor could an African-American judge sit in a school segregation case if the judge did not avow that he or she had no intention of ever sending a child to an integrated school, and had no close relative who might send a child to an integrated school. Also, a woman judge could not decide a gender discrimination case because her own job status might some day be affected by the outcome. And no judge of either gender could sit on a gender discrimination case if the judge had a close relative in the work force.

For anyone paying attention, it will be tedious to run through Freedman’s errors, but here goes: Prop 8 proponents’ position has no implications for whether a member of a religious group that actively opposes homosexuality or same-sex marriage could sit on the case. That judge would not be deciding whether he has a legal right to marry. On the school-segregation hypothetical, my discussion of Chemerinsky’s error applies to Freedman. A woman judge deciding the typical gender-discrimination case would not be determining her own legal rights (and it is, moreover, fanciful and speculative that a life-tenured woman judge would currently have any strong and particular personal interest in such rights). Nor would Prop 8 proponents’ position dictate the absurd conclusion that “no judge of either gender could sit on a gender discrimination case if the judge had a close relative in the work force.” (If a judge’s daughter had filed or was filing a lawsuit that advanced a novel legal reading of a gender-discrimination law, it might indeed be the case that the judge should not decide a separate case that presents the same legal issue. But the narrowness and obvious good sense of that proposition theory puts in stark relief Freedman’s overbroad claim.)

Obscuring the threshold issue of legal right, Adam Serwer wrongly claims that Prop 8 proponents are arguing merely that Walker “stood to benefit personally from Prop 8 being overturned.” With this diluted concept of “benefit,” he then contends that “this same logic could be applied to a straight, married judge hearing the case.” But a “straight, married judge” would not be deciding whether to confer on himself a new legal right that he would have any interest in exercising. Indeed, it’s worth emphasizing that Prop 8 proponents concede that, without more, a gay judge who is not in a long-term same-sex relationship also would not be presumed to have a strong and particular interest in exercising the right to marry a same-sex partner.

Law professor Howard Wasserman likewise wrongly reduces Prop 8 proponents’ position to a diffuse claim that a judge must recuse himself whenever he might “benefit” in some way from his own ruling. He even contends that Judge Leon Higginbotham’s decision not to recuse himself from a case in which a class of black workers brought a Title VII claim against a union somehow has some bearing on Prop 8 proponents’ position. But since Judge Higginbotham plainly wasn’t deciding his own legal rights, Wasserman is simply not understanding (much less responding to) Prop 8 proponents’ actual argument.



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