Try This Hypothetical

by Matthew J. Franck

I have caught up with the appellants’ brief to the Ninth Circuit in Perry v. Brown (the Prop 8 case), filed on Monday by Charles Cooper, and noted here on Tuesday by Ed Whelan.  It’s a brilliantly argued brief, building an irrefutable case that Judge Vaughn Walker flagrantly violated a duty either to disclose his longstanding same-sex relationship with a partner over the last decade, or to recuse himself quietly by instructing the clerk of the district court to transfer the case to another judge.  The brief also explodes, point by point, the excuses made for Judge Walker by Judge Ware, chief judge of the district court, who seems to get everything wrong about the ethics of recusal.

Try this out as a hypothetically parallel case: Imagine a judge in a tort case, asked to sit in judgment on a bench trial of whether General Motors should be required to pay, in a class action, damages to all owners of Cadillacs between 5 and 10 years old, on demand of the owner.  Unbeknownst to the parties in the case, the judge has a 2004 Cadillac sitting in his garage.  Deciding the case against GM, he then retires, and discloses his ownership of the relevant Cadillac, but says that during the trial it never crossed his mind whether he might, in the event of GM’s losing, claim his own damages as a member of the class.  As of this writing he’s still thinking it over . . .

Who would not say that the judge had violated a duty to disclose and to recuse?  Who would say it is an outrageous intrusion into the judge’s personal affairs even to raise the issue?  (And no, I am not saying Judge Walker’s partner is an automobile.)

Yet this is, at the level of principle, exactly what has happened in the Perry case.  It may be the most obvious instance of judicial misconduct I have ever seen, only perhaps barring those that have resulted in congressional impeachment proceedings.  Indeed, had Walker not retired in such convenient fashion, I would regard the case against his conduct that Ed and others have compiled as amounting to a brief for his impeachment.  It is certainly as plain as day that his ruling must be vacated on appeal.

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