Bench Memos

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Confused Defenders of Vaughn Walker’s Failure to Recuse—Part 3


Following my Part 1 and Part 2 posts, I have just a couple of clean-up points:

1. Stephen Gillers contends that Prop 8 proponents face a “waiver issue,” since it “is incumbent on a party seeking recusal to raise the issue in a timely fashion.” Gillers ignores the prior obligation of a judge to disclose relevant facts bearing on recusal. Instead, he states that “the likelihood that [Walker] is gay was generally known and discussed.”

Gillers’s contention is badly flawed. For starters, a party seeking recusal is entitled to presume that a judge is abiding by his disclosure obligations and is not expected to act on the basis of rumors, no matter how widespread. Indeed, section 455(e) specifically provides that a party’s waiver of disqualification under section 455(a) (where a judge’s “impartiality might reasonably be questioned”) “may be accepted provided it is preceded by a full disclosure on the record of the basis for disqualification.” (Emphasis added.)

Second, Prop 8 proponents do not base their motion on the fact that Walker “is gay,” but on the fact that he is in a long-term same-sex relationship. That fact became known less than a month ago, when Walker himself disclosed it.

2. It’s bad enough that so many of Walker’s defenders don’t confront the actual argument made by Prop 8 proponents. It’s even worse that they resort to invective as a substitute for their lack of argument.

For example, Adam Serwer calls the motion to vacate “slimy” and falsely claims that it rests “on the flimsy assumption that gays and lesbians are different from heterosexuals in a manner that justifies denying them their fundamental rights.” (He also has no support for his claim that the motion is “built on an unstated but core conservative view of the courts —that judicial ‘impartiality’ is best defined as viewing the law through the cultural prism of a heterosexual, conservative white Christian judge.” But why bother to argue when simply alleging is so much easier?)

Similarly, Erwin Chemerinsky labels the motion “offensive” and “simply a personal attack on Judge Walker in an effort to embarrass him.” And, not recognizing that he is the one indulging in McCarthyite smears, he asks, “Have they no shame?”

(I won’t descend deeper into the blogosphere to highlight much more extreme examples.)


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