Bench Memos

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More Distortions of Grounds of Vaughn Walker’s Recusal Obligation—Part 2


The front-page article in the Washington Post isn’t as bad as the New York Times house editorial (see Part 1), but it also misstates Prop 8 proponents’ core argument.

According to the article, the issue presented by Prop 8 proponents “is that Walker could directly benefit from his ruling and that he should have disclosed in court whether he intended to marry.” (Emphasis added.) But the amorphous phrase “directly benefit from his ruling” fails to capture the essential element that Walker was 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.

The article also quotes law professor Charles Geyh for the proposition that the recusal challenge will likely not succeed because “It’s pretty well understood that status-based motions to disqualify are not going to float.” But Prop 8 proponents’ motion is clearly not a “status-based” motion, as my Part 1 post and the links therein show. (Whether the confusion here is the reporter’s or Geyh’s isn’t evident.)

The article also includes this confused paragraph:

But even those who say the argument has merit acknowledge that it may not be enough to persuade a judge to vacate Walker’s ruling. They say Proposition 8 proponents should have raised their concern earlier, when the rumors about Walker’s sexuality began to surface. And they point out that there is no evidence that Walker planned to marry his partner of 10 years.

I address in point 1 here the baseless claim that Prop 8 proponents have somehow waived their recusal claim by not raising it before Walker disclosed the information on which the claim rests. Walker was obligated to disclose, at the outset of the case, information calling into question his impartiality. Prop 8 proponents were entitled to assume that he was complying with his duties, and they should hardly have been expected to act on the basis of “rumors about Walker’s sexuality.” (It’s Walker’s long-term same-sex relationship, not his “sexuality” in and of itself, that provides the factual predicate for the recusal motion.) Indeed, the same folks who now smear Prop 8 proponents (point 2 here) for relying on Walker’s belated disclosure can hardly plausibly contend that they should have acted on the basis of rumors. (The article asserts, without actually naming anyone, that “those who say the [recusal] argument has merit” are making this weak timeliness argument; I doubt that very much.)

As for the assertion that “there is no evidence that Walker planned to marry his partner of 10 years”: The relevant issue under the recusal standard is whether Walker’s impartiality “might reasonably be questioned.” For the reasons I’ve spelled out here, a reasonable person would suspect that Walker had an interest in marrying his long-term same-sex partner. That fact likely explains why Walker chose not to disclose the relationship when he was obligated to do so. (And his improper non-disclosure, which prevented reasonable follow-up inquiry from the parties, also suffices to explain why there is “no evidence” of Walker’s specific intentions.) 


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