Critique of Order Denying Motion to Vacate Anti-Prop 8 Judgment—Part 1

by Ed Whelan

In a short series of posts, I will examine Chief Judge Ware’s ruling that denied Prop 8 proponents’ motion to vacate former district judge Vaughn Walker’s anti-Prop 8 judgment on account of Walker’s failure to recuse.

Ware’s discussion has two relevant parts. First, Ware determined that Walker was not required to recuse himself under section 455(b)(4) (of Title 28 of the U.S. Code), which requires that a judge recuse himself from a proceeding when the judge has any “interest that could be substantially affected by the outcome of the proceeding.” (Ruling at 5-12.) Second, Ware concluded that Walker’s recusal was also not required under section 455(a), which requires that a judge “disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” (Ruling at 12-19.)

Let’s start with Ware’s discussion of section 455(b)(4):

1. In addressing Prop 8 proponents’ argument that Walker’s long-term same-sex relationship in California meant that he had an actual interest in the case that he was deciding, Ware sets forth this “legal conclusion”:

In a case that could affect the general public based on the circumstances or characteristics of various members of that public, the fact that a federal judge happens to share the same circumstances or characteristic and will only be affected in a similar manner because the judge is a member of the public, is not a basis for disqualifying the judge under Section 455(b)(4). [Punctuation error in original.]

Applying this “legal conclusion” to Walker’s situation, Ware declares: “In particular, in a case involving laws restricting the right of various members of the public to marry, any personal interest that a judge gleans as a member of the public who might marry is too attenuated to warrant recusal.”

Taken on its own terms, Ware’s stated “legal conclusion” would compel the stunning result that a judge need not recuse himself from a case asserting an expanded right to marry even if it is crystal-clear that the judge desires to avail himself of the right that he is deciding whether to create. Under his reasoning, the fact that a judge “gleans” a “personal interest” only “as a member of the public” (rather than, as I understand it, as a party to the very case) somehow dictates the conclusion that his interest is “too attenuated to warrant recusal.”

Ware’s “legal conclusion” makes no sense. I’ve previously offered the hypothetical of a judge who desires to enter into a series of polygamous marriages and who is assigned a case in which plaintiffs are challenging the anti-polygamy laws of the state in which the judge lives. As I stated at the time, legal ethicist Stephen Gillers “acknowledges that the judge’s recusal would be required,” and “I find it difficult to imagine that there would be any legal ethicist anywhere who would maintain otherwise.” But Ware evidently would. Under his “legal conclusion,” the hypothetical case “could affect the general public based on the circumstances or characteristics of various members of that public”—the relevant characteristic of those various members being that they are aspiring polygamists—and the fact that the judge “happens to share” that characteristic “and will only be affected in a similar manner because the judge is a member of the public” (rather than a party to the case) “is not a basis for disqualifying the judge under Section 455(b)(4).”

Now perhaps Ware was just being remarkably sloppy in setting forth and applying his core “legal conclusion.” I will note that in nearby sentences Ware refers to “speculative” benefit. But if Ware’s real reasoning here is that Walker’s benefit from his own ruling was supposedly too speculative to require recusal under section 455(b)(4), it should have been a simple matter for him to say so.

2. Ware then addresses what he calls Prop 8 proponents’ “[a]lternative[]” argument under section 455(b)(4)—in his words, that Walker “should be disqualified because his same-sex relationship gave him a markedly greater interest in a case challenging restrictions on same-sex marriage than the interest held by the general public.” Ware offers two reasons to reject this argument. First, he contends that “it is inconsistent with the general principles of constitutional adjudication to presume that a member of a minority group reaps a greater benefit from application of the substantive protections of our Constitution than would a member of the majority.” Second, he contends that disqualifying Walker “based on an inference that he intended to take advantage of a future legal benefit made available by constitutional protections would result in an unworkable standard for disqualification.”

Ware’s first contention is badly confused. The relevant question under section 455(b)(4) is whether a judge has an “interest that could be substantially affected by the outcome of a proceeding.” It’s a pious-sounding sentiment to maintain, as Ware does, that “we all have an equal stake in a case that challenges the constitutionality of a restriction on a fundamental right,” but it’s manifestly not true as a matter of elementary recusal principles. (Again, Ware’s position would dictate that the polygamist-aspiring judge need not recuse himself from the hypothetical anti-polygamy case.) Ware also asserts:

The single characteristic that Judge Walker shares with the Plaintiffs, albeit one that might not have been shared with the majority of Californians, gave him no greater interest in a proper decision on the merits than would exist for any other judge or citizen.

But the basis for Walker’s recusal wasn’t his “interest in a proper decision on the merits”; it was his interest in a decision, whether or not proper, that struck down Prop 8.

Ware’s second contention is also wrong. To be sure, recusal questions may sometimes be difficult, but there’s nothing “unworkable” about Prop 8 proponents’ standard. The key to workability is full and timely disclosure of relevant facts by the judge facing possible recusal. And if the judge has privacy or other interests in not making such disclosure, the simple alternative is for him to have the case re-assigned to another judge.

3. Ware also interweaves the race card. He nakedly claims, for example, that Prop 8 proponents’ argument under section 455(b)(5) would require “recusal of minority judges in most, if not all, civil rights cases” and would “place an inordinate burden on minority judges.” But that absurd claim merely reveals his woeful failure to recognize how limited their actual argument is (see last half of this post).