Critics’ Pervasive Distortion of Recusal Issue in Prop 8 Case

by Ed Whelan

Last summer, federal district Vaughn Walker’s extraordinary course of misdeeds in the case attacking marriage in California culminated in his wild — and, as one same-sex marriage advocate put it, “radical” — ruling striking down Proposition 8. That ruling ignored binding Supreme Court  and Ninth Circuit precedent, concocted absurd factual, and grossly misstated the state of the record on key points.

Last month, Walker, now retired from the bench, disclosed for the first time that he is in a ten-year-long same-sex relationship. That disclosure triggered a motion by Prop 8 proponents to vacate Walker’s anti-Prop 8 judgment on the ground that he had improperly failed to recuse himself from the case. As I discuss more fully in these  two recent Bench Memos posts, the essential argument made by Prop 8 proponents is not merely that Walker stood to benefit from his ruling, but that he 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. Nearly all critics of the motion have persisted in misrepresenting its core argument.

The distortions continue. Today’s Washington Post carries a front-page story on the motion. That article falsely states at the outset that the motion argues merely that Walker “could benefit personally from his decision if he wanted to marry his partner” and then presents various legal ethicists who attack that straw man. Similarly, this house editorial  in today’s New York Times does not present the actual argument for recusal and instead attacks the “open-ended logic” of an argument that Prop 8 proponents don’t make.

When critics of a position can’t even accurately present it, it’s a good sign that they have no sound argument against it.