On Monday, in a series of three posts (Part 1, Part 2, and Part 3), I explained in detail how defenders of former district judge Vaughn Walker’s failure to recuse himself from the Prop 8 case were misrepresenting the argument for recusal that Prop 8 proponents have advanced and that these defenders had presented no meaningful response to the compelling merits of Prop 8 proponents’ motion. So far as I’m aware, none of the critics I identified by name nor any other defenders of Walker have made any effort to engage my arguments. Instead, the distortions have continued.
New York Times blogger Linda Greenhouse added to the confusion yesterday. Some quick comments on Greenhouse’s post:
1. Greenhouse doesn’t accurately present Prop 8 proponents’ argument for recusal. Early in her post, she writes: “Perhaps, his critics suggest, Judge Walker secretly intends to marry his partner of 10 years and has thus improperly placed himself in a position to reap personal benefit from his own ruling.” Insofar as Greenhouse is contending that Prop 8 proponents (as opposed to unnamed “critics”) are arguing merely that Walker “improperly placed himself in a position to reap personal benefit from his own ruling,” she is ignoring the essential element of their argument—that Walker was deciding whether to confer on himself a valuable legal right (a right that a reasonable person would believe he had a strong and particular interest in exercising). Prop 8 proponents’ argument is not merely one of benefit.
2. Later, Greenhouse purports to summarize Prop 8 proponents’ argument in this way:
The motion filed by the Proposition 8 supporters argues that “the pall cast by the palpable appearance of judicial partiality upon one of the most prominent and widely publicized constitutional cases in this country’s history threatens deep and lasting harm to the public’s confidence in our nation’s judicial system.”
But no intelligent reader would mistake that proposition about the importance of the issue for a summary of the grounds of recusal.
Greenhouse then states that she “find[s] this argument puzzling,” since the “very premise of the war against same-sex marriage” is that “preserving ‘traditional’ marriage … is the urgent business of society as a whole.” Conflating a statement from supporters of marriage about the “duty of the law” into a “view of judicial duty,” she then contends that the “logical inference” is that a “straight judge” has a similar “stake in the outcome of a case about whether to recognize same-sex marriage.”
If Greenhouse and the many other folks who have made variants of this sloppy argument would recognize that Prop 8 proponents’ recusal argument has the threshold element that Walker was deciding whether to confer on himself a legal right, they would readily see the way out of their confusion. A “straight judge” deciding “whether to recognize same-sex marriage” is not deciding his own right to marry, so there is no reason to believe that he has a personal stake in the outcome of the case.
3. To be clear: The argument that Prop 8 proponents are advancing is not exhaustive of the grounds on which a judge’s “impartiality might reasonably be questioned” under 28 USC § 455(a). Take, for example, a wildly implausible hypothetical in which, say, the spouse of an appellate judge headed an ideological organization that touted its lead role in defending traditional marriage, that the spouse publicly rejoiced over a district-court ruling declining to invent a right to same-sex marriage, that the spouse consulted with lawyers for the lead party about the case, and that the spouse’s organization filed briefs in that very district-court case. Surely, everyone would recognize that the appellate judge could not review the district-court ruling in that same case, right?
Well, as anyone who has been paying attention to the appeal in the Prop 8 case knows, that wildly implausible hypothetical accurately captures the situation of Ninth Circuit judge Stephen Reinhardt, who has declined to recuse himself from the Prop 8 appeal notwithstanding his wife’s activities.
Faulting Prop 8 proponents for seeking Reinhardt’s recusal, Greenhouse tells her readers only that their argument for recusal was that his wife’s organization, the ACLU of Southern California, “has been a leading advocate for same-sex couples wishing to marry.” She doesn’t see fit to disclose all the other facts on which the recusal motion was based.
4. Greenhouse labels “ugly” the “last-ditch effort to retrospectively disqualify” Walker. She doesn’t make clear that Prop 8 proponents’ motion is retrospective only because Walker failed to live up to his obligation to disclose, at the outset of the case, facts that might call into question his impartiality. (As an alternative to disclosure, of course, Walker could simply have had the court clerk re-assign the case to another judge.)
5. Posturing herself as above the fray, Greenhouse observes that she has never “witnessed an effort on the part of anyone to disqualify a presumably friendly judge.” Well, it shouldn’t be news to Greenhouse that we have an adversary system that relies on the parties to make the arguments that advance their interests. The fact that a party seeking recusal expects to benefit from the recusal is not a meaningful argument that the grounds for recusal are inadequate.
(In a similar effort to portray herself as a centrist, Greenhouse now asserts—for the first time, from what I can tell—that she “found persuasive” Justice Scalia’s 2004 opinion explaining his decision not to recuse himself from a case involving Vice President Cheney’s energy policy task force.)