Bench Memos

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Stephen Gillers’s Faulty Escape Hatch


At the risk of seeming to damn with faint praise, I will note that, among the defenders of former district judge Vaughn Walker’s failure to recuse in the anti-Prop 8 case, law professor Stephen Gillers has come closest to getting things right. Gillers has recognized the general proposition that Prop 8 proponents invoke—that a judge can’t confer on himself a valuable legal right that he has a strong and particular interest in exercising. He has soundly opined that Walker “was wrong not to reveal” his long-term same-sex relationship at the outset of the Prop 8 case. And in comments in an article today in the San Francisco Chronicle, Gillers rejects the badly confused claim (see points 2 here and here) that Prop 8 proponents’ argument for Walker’s recusal would somehow require that married heterosexual judges also recuse themselves from the Prop 8 case. (Given their pattern of wild distortions, I suppose that I’m not surprised by the absurd quote that the Chronicle attributes to counsel for Prop 8 plaintiffs. Were it not for the sorry standards of modern legal academia, it ought to be much more of a puzzle how law professor Monroe Freedman could persist in his confusion.)

Yet Gillers has repeatedly tried to contrive an escape hatch from the conclusion that his observations would drive him to. The Chronicle article presents his latest variant*:

Even so, Gillers said, an unreported long-term, same-sex relationship should not be grounds for disqualifying a judge. Since Walker could have married his partner in California before Prop. 8 passed, and could marry him today in a number of states, Gillers said, “his decision has no consequence to him.”

Gillers’s escape hatch is woefully defective. Indeed, it’s striking that what Gillers says of Walker—that he “could have married his partner in California before Prop. 8 passed, and could marry him today in a number of states”—is also true of the plaintiffs in the Prop 8 case. Thus, if Gillers were right that Walker’s “decision has no consequence to him” because (as I understand his reasoning) Prop 8 doesn’t deprive him of any legal right that he would regard as valuable, then it would follow as well that Prop 8 plaintiffs lacked standing to pursue their claim against Prop 8.** But Gillers’s argument is clearly wrong. Among other things, the continued existence of Prop 8 should mean that California would not recognize a same-sex marriage performed today in another state. Further, a reasonable person would understand that there are plenty of reasons why someone who has made California his permanent residence might want to marry only in California.

In sum, the principles that Gillers recognizes compel the conclusion that Walker should have recused himself.

* I refuted Gillers’s similar first effort three weeks ago near the end of this post.

** In his review of Prop 8 proponents’ reply brief, Aaron Worthing of Patterico’s Pontifications discusses more broadly the conflict between plaintiffs’ standing and their defense of Walker’s non-recusal.


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