In a post on The Corner this morning, I point out that a New York Times house editorial and a front-page article in the Washington Post both fail to present the actual grounds for Prop 8 proponents’ argument that former district judge Vaughn Walker improperly failed to recuse himself from the anti-Prop 8 case. In this post and the next, I will amplify my critique.
The NYT editorial correctly states: “It is well established that personal characteristics, like race, sex, ethnicity, religion or sexual orientation, do not by themselves invoke the rule that judges must step aside if their ‘impartiality might reasonably be questioned.’” (Emphasis added.) Prop 8 proponents fully accept that proposition. Yet the editorial leaves the hapless reader the impression that their recusal argument is based merely on Walker’s sexual orientation, and, in classic straw-man mode, it then attacks the implications of the “open-ended logic” that it misattributes to Prop 8 proponents.
As I gather I must continue to point out ad infinitum, the actual argument of Prop 8 proponents—which virtually no critic has confronted, much less refuted—is that Walker’s “impartiality might reasonably have been questioned” (the governing standard for disqualification under 28 USC §455(a)) because Walker’s (undisclosed) long-term same-sex relationship meant that Walker, in deciding the Prop 8 case, would be deciding whether to confer on himself a valuable legal right that a reasonable person would believe he had a strong and particular interest in exercising. Further, as I discuss more fully in this post, those the general proposition that the NYT correctly states—which is limited to “personal characteristics … by themselves”—plainly does not apply
where the judge’s personal characteristics form part of the very basis of the assessment that he would be conferring on himself a valuable legal right that he has a strong and particular interest in exercising. To conclude otherwise—to maintain, in other words, that the polygamist-aspiring judge must recuse himself but that the gay judge who wants to enter a same-sex marriage need not—is not to treat gay judges equally with other judges but is rather to confer on them a unique exemption from the recusal obligations.
To the NYT editorialists, Walker wouldn’t have been required to recuse even if it were beyond dispute that he was “intending to marry in California” because, it contends, there “is no basis to think Judge Walker’s personal relationship played a role in his ruling.” That contention is irrelevant under the objective reasonable-person standard that applies under section 455(a). (And it’s also wildly inaccurate, as there is overwhelming evidence of Walker’s rampant course of misconduct.)
The NYT asserts that the claim that Walker should have recused himself is “bogus” and “preposterous.” As usual, those adjectives instead aptly describe the NYT editorial.