Bench Memos

Confused Defenders of Vaughn Walker’s Failure to Recuse—Part 2

As I explain in my Part 1 post, the elementary principle that Prop 8 proponents are advancing in their motion to vacate former district judge Vaughn Walker’s anti-Prop 8 judgment on account of his failure to recuse himself is that a judge can’t confer on himself a valuable legal right that he has (or is reasonably believed to have) a strong and particular interest in exercising.

Walker’s violation of this principle may be easily demonstrated in two analytical steps: First, a judge can’t confer on himself a legal right to marry when he has a strong and particular interest in exercising that right. Second, for purposes of the objective disqualification standard set forth in 28 USC § 455(a) (a judge must recuse himself in any case in which “his impartiality might reasonably be questioned”), a reasonable person would believe that Walker had a strong and particular interest in exercising a right to marry his longtime same-sex partner. (Please note that, for purposes of this analysis, I introduce the objective reasonable-person standard only at the second step. I could instead have had the “First” step be that a judge can’t confer on himself a legal right to marry when he is reasonably believed to have a strong and particular interest in exercising that right, but that would have led to more cumbersome verbiage.)

On the first step: Let’s assume a hypothetical in which (a) it’s undisputed that a judge will, if given the legal right, enter into a series of polygamous marriages, and (b) the judge is assigned a case in which plaintiffs are challenging the anti-polygamy laws of the state in which the judge lives. As I discuss in my Part 1 post, Stephen Gillers acknowledges that the judge’s recusal would be required. Indeed, I find it difficult to imagine that there would be any legal ethicist anywhere who would maintain otherwise—but for, that is, the biasing effect of contemplating the ramifications of that acknowledgment for Walker’s case. 

At the level of legal principle, what is true of a judge seeking to exercise a right to polygamy is also true of a judge seeking to exercise a right to same-sex marriage. That is, in both cases the judge must recuse himself from a case in which he would be deciding whether or not to confer on himself the disputed right. Recusal obligations do not turn on whether the cause is favored or disfavored, and there is no principled ground for distinguishing the judge who wants to enter polygamous marriages from the judge who wants to enter a same-sex marriage.

Insofar as there is any genuine confusion on this point, it would seem to arise from a misunderstanding of the principle that a judge’s personal characteristics don’t generally provide a basis for recusal. That principle means that the fact that a judge is black or white, male or female, straight or gay generally has no bearing on the judge’s ability to decide cases involving issues of race, sex, or sexual orientation, respectively. But that general principle is not an absolute, and it clearly does not sensibly apply where the judge’s personal characteristics form part of the very basis of the assessment that he would be conferring on himself a valuable legal right that he has a strong and particular interest in exercising. To conclude otherwise—to maintain, in other words, that the polygamist-aspiring judge must recuse himself but that the gay judge who wants to enter a same-sex marriage need not—is not to treat gay judges equally with other judges but is rather to confer on them a unique exemption from the recusal obligations.

To illustrate the point another way: Imagine a peculiar hypothetical (involving adoptive rights, say) in which a heterosexual male judge desires to enter into a nonsexual same-sex marriage with another heterosexual male. That judge would surely be recused from deciding a case that presented the question whether a right to same-sex marriage existed in his state. It is absurd to maintain that a gay judge who desires to enter into a same-sex marriage would not likewise be disqualified.

As for the second step: The affirmative case for the proposition that a reasonable person would believe that Walker had a strong and particular interest in exercising a right to marry his longtime same-sex partner is simple and compelling, as legal ethicist Jack Marshall, a supporter of same-sex marriage, candidly acknowledges. To borrow from my recent NRO essay: Walker’s own factual findings explain why a reasonable person would expect him to want to have an interest in marrying his partner. A reasonable person would think that Walker would want to have the opportunity to take part with his partner in what “is widely regarded as the definitive expression of love and commitment in the United States.” A reasonable person would think that Walker would want to decrease the costs of his same-sex relationship, increase his wealth, and enjoy the physical and psychological benefits that marriage is thought to confer. Further, as Prop 8 proponents discuss in their motion, Walker’s desire to marry his partner is the most sensible explanation for his extraordinary series of “irregular and unprecedented rulings, both procedural and substantive.”

What do Walker’s defenders have to say in response? Most don’t even address the point. One who does, Stephen Gillers, contends that “there is no reason to believe that Walker wishes to marry his partner in California” since he “did not marry his partner in the state prior to Prop. 8, in the window of time available to do so”—i.e., between the state supreme court’s ruling inventing a state constitutional right to same-sex marriage in May 2008 and the adoption of Prop 8 in November 2008”—and since he has not “married anywhere else.” (At the same link, law professor William G. Ross makes Gillers’s second point.)

Gillers’s argument is laughably feeble and makeweight. It’s worth noting that what he says of Walker is also true of the plaintiffs in the Prop 8 case: they did not marry in California between May 2008 and November 2008 and they have not married anywhere else. Indeed, Gillers has it backwards: If Walker had entered into a valid same-sex marriage in California between May 2008 and November 2008, that fact would powerfully negate the inference that Walker now hopes to enter into such a marriage (though it might, of course, trigger other bases of recusal). Further, there are plenty of reasons why someone who has made California his permanent residence would want to marry only in California.

In sum: It is clear that Walker had a duty to recuse, and his defenders have offered no serious response.

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