Bench Memos

NRO’s home for judicial news and analysis.

Confused Washington Post Editorial on Vaughn Walker’s Failure to Recuse


Today’s Washington Post carries an unusually sloppy house editorial opposing Prop 8 proponents’ motion to vacate former district judge Vaughn Walker’s anti-Prop 8 judgment.

The editorial soundly rejects the notion that Walker can avail himself of the general presumption that a judge will be impartial:

In the vast majority of cases, judges of all backgrounds put aside their personal beliefs and preferences to render decisions based only on fact and law. But this case is different, not because of Judge Walker’s sexual orientation but because he and his partner potentially could have benefited from a decision striking down Prop 8.  

But it then limits itself to opining that Walker “should have disclosed his relationship at the outset” and implies that Walker, after disclosure, might properly have declined to recuse.

Further, the editorial asserts that vacating a judgment “is an extraordinary remedy, and courts have in many instances declined to throw out a judgment even after concluding that a judge should have disqualified himself.” I don’t know what cases the Post has in mind, but the legal principles it espouses contradict the Supreme Court and Ninth Circuit precedent that Prop 8 proponents cite.

Even worse, the editorial contends that it “is difficult to imagine any judge—gay or straight—coming to a different conclusion” on the merits of the Prop 8 case than Walker did. That contention is utterly absurd, and the Post, in trying to support that contention, swallows hook, line, and sinker Walker’s deceptions (my Ninth Circuit amicus brief exposes a number of them), as it claims that Prop 8 proponents “put on an exceedingly weak case, with a paucity of evidence, a short slate of often erratic witnesses and an unconvincing legal case.”


Sign up for free NRO e-mails today:

Subscribe to National Review