Bench Memos

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Olson/Boies Non-Responsive Brief Opposing Prop 8 Proponents’ Motion to Vacate


Prop 8 plaintiffs, represented by Ted Olson and David Boies, today filed a very weak brief, replete with extravagant rhetoric, opposing Prop 8 proponents’ motion to vacate Vaughn Walker’s anti-Prop 8 judgment on account of Walker’s failure to recuse. I’ll outline here the major flaws* in their opposition.

I’ll begin by stating, yet again, the essence of Prop 8 proponents’ actual argument for Walker’s duty to recuse:

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 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.

1. Olson and Boies never accurately present Prop 8 proponents’ actual argument, much less respond to it. Instead, they resort to various convenient distortions. For example, they falsely claim (page 2) that “Proponents contend that a judge’s impartiality might reasonably be questioned because he is likely to favor the outcome that would afford greater rights to the minority group of which he is a member.” (See also page 15, which mischaracterizes Prop 8 proponents’ argument as “questioning a judge’s impartiality simply because he is a member of a minority group whose rights are implicated in a case before the court.”) On the basis of that distortion, they present an Equal Protection argument against Walker’s recusal.

But Prop 8 proponents are not contending that Walker can’t decide any case involving rights of gays. Their argument instead is that he was deciding in this very case whether to confer on himself his own right to marry his same-sex partner—and that a reasonable person would believe that he had a strong and particular interest in exercising the very right he was deciding. The Equal Protection Clause cannot plausibly be read to trump the venerable principle that American citizens are entitled to impartial judges, and nothing in Olson’s and Boies’s Equal Protection rhetoric bears on Prop 8 proponents’ actual argument. (Incredibly, Olson and Boies argue (p. 1) that even “iron-clad proof of Judge Walker’s desire to marry” his same-sex partner would provide “absolutely no basis for questioning his impartiality in this case.” Their amazing proposition that the Equal Protection Clause somehow exempts minority judges from the ordinary operation of the recusal laws reflects their failure to confront the fact that what is at issue is that Walker was deciding his own right to marry his same-sex partner.)

Similarly, Olson and Boies elsewhere (e.g., page 9) obscure the threshold element of legal right by asserting that Prop 8 proponents claim merely that Walker has some diffuse “interest in the case” such that he “might benefit” from it—and they then proceed to knock down their own straw men.

2. Even though Prop 8 proponents squarely base their recusal argument on section 455(a) (which requires recusal when a judge’s “impartiality might reasonably be questioned”) and expressly state that the court “need not decide whether Chief Judge Walker was disqualified under Section 455(b)(4)” (which requires recusal when a judge has an “interest that could be substantially affected by the outcome of the proceeding”), Olson and Boies somehow try to put section 455(b)(4) front and center. Beyond leading with it and giving it twice as much attention in their introduction, they devote 5-1/2 pages of argument to it, as compared to only two pages to section 455(a).

3. Olson and Boies contend that Prop 8 proponents’ reading of section 455(a) “would require federal judges to publicly disclose intimate details of their private lives” so that parties could assess whether the judges must recuse. But a judge who wishes not to disclose facts that bear on recusal has the simple option of asking the court clerk to reassign the case. Reassignments happen routinely, for various reasons, so a reassignment would not give rise to any inference about, much less disclosure of, “intimate details.” So there is no genuine conflict between a judge’s privacy interests and the laws governing recusal.

4. Olson and Boies contend that Prop 8 proponents’ motion is not timely. They argue, in particular, that Walker has been “openly gay … since well before Proponents became involved in this litigation” and that a June 2010 article stated that Walker “attends bar functions with a companion.” But it was only in April 2011 that Walker publicly disclosed that he is in a long-term same-sex relationship, and Prop 8 proponents’ motion is based on that disclosure. A newspaper report that Walker “attends bar functions with a companion” is hardly the equivalent of Walker’s recent disclosure, and one can only imagine the abuse that Olson and Boies (and others) would have heaped on Prop 8 proponents if they had filed a recusal motion on the basis of that newspaper report. Further, Prop 8 proponents were entitled to presume that Walker was abiding by his disclosure obligations, and it makes no sense to penalize them for his failure to do so.

Overall, the reasons for Olson’s and Boies’s distortions and misdirection are clear: They have no meaningful response to the compelling merits of Prop 8 proponents’ actual argument.

(The City and County of San Francisco and the state defendants who refused to defend Prop 8 have also filed oppositions. I haven’t read those oppositions yet. In the event they contain anything else that invites comment, I will address them in a later post.)

* I do not attempt in this post to counter the overarching false narrative of the Prop 8 proceedings that pervades the opposition, and I will instead refer interested readers to Prop 8 proponents’ motion and to my Ninth Circuit amicus brief on the merits appeal.


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