Bench Memos

Critique of Order Denying Motion to Vacate Anti-Prop 8 Judgment—Part 2

See Part 1

Now let’s consider the second part of Chief Judge Ware’s ruling, the part in which he determined that former district judge Vaughn Walker’s fitness to decide the anti-Prop 8 case could not reasonably be questioned (under section 455(a)):

1. Ware contends that the case for Walker’s disqualification “depends upon the assumption that a judge who is in a relationship has an interest in getting married which is so powerful that it would render that judge incapable of performing his duties.” (Emphasis added.) He adds in a footnote that “the mere fact that an individual is in a relationship with a person does not necessarily imply that that individual is interested in getting married to that person at all.” (Emphasis added.) Indeed, he says that Prop 8 proponents’ supposed contention that “almost two-thirds of committed same-sex couples in California would get married if permitted to do so … suggests that more than one-third of such couples in California have no interest in being married.” (Emphasis added; brackets omitted.)

As the italicized passages show, Ware is blatantly stacking the deck by burying the “might reasonably be questioned standard” of section 455(a) (a judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned”) and replacing it with a much higher standard of incontrovertible proof of inescapable bias. That is not what section 455(a) says, and it is not what section 455(a) has ever been held to mean. As a publication of the Federal Judicial Center (Judicial Disqualification: An Analysis of Federal Law (2d ed. 2010), pp. 17-18) explains, “[w]hether the judge is, in fact, impartial … is not dispositive of disqualification under [section 455(a)]”:

The justification for making perceived partiality a grounds for disqualification is at least twofold. First, regardless of whether judges are partial in fact, public perceptions of partiality can undermine confidence in the courts. Second, disqualifying judges for outward manifestations of what could reasonably be construed as bias obviates making subjective judgment calls about what is actually going on inside a judge’s heart and mind.

I’ll note also that Ware conveniently omits the fact that Walker is in a long-term relationship.

Contra Ware’s statements above, the case for Walker’s disqualification under section 455(a) is that a reasonable person would question whether a judge who is in a long-term same-sex relationship could impartially decide whether to confer on himself a right to marry his partner. In order to question the judge’s impartiality, a reasonable person would not have to conclude that the judge was “necessarily” interested in marrying. And surely evidence that “almost two-thirds of committed same-sex couples in California would get married if permitted to do so” would amply support a reasonable person’s questioning Walker’s impartiality. (Contrary to what Ware implies, that’s evidence that plaintiffs offered, not a mere contention by Prop 8 proponents.) To the extent that it addresses them at all, Ware’s ruling offers no meaningful response to these points.

2. Ware contends that Prop 8 proponents argue “[a]lternatively” that “a reasonable observer would question Judge Walker’s impartiality, given the fact that Judge Walker did not disclose his same-sex relationship ‘until eight months after final judgment was entered, and after he had retired from the bench,’ and because Judge Walker ‘has never disclosed whether he and his partner have (or ever have had) any interest in marrying should a right to marry an individual of the same sex be established.’” (Ware clips the first quote to eliminate Prop 8 proponents’ reference to Walker’s “long-term” same-sex relationship.)

But far from making an alternative argument under section 455(a), Prop 8 proponents make the elementary point that these facts of non-disclosure need to be considered together with the fact of Walker’s long-term same-sex relationship. A reasonable person would certainly have plenty of cause to suspect that Walker delayed his disclosure of his long-term same-sex relationship in order to prevent his timely recusal.

Further, as Prop 8 proponents show in their briefs, it’s Walker who had the obligation of full disclosure, and it’s entirely appropriate to draw adverse inferences from his non-disclosure. Ware’s effort to distinguish away the case authority that Prop 8 proponents cite is patently laughable. See Ruling at 17-18.

Ware contends that “if, in an abundance of caution, [Walker] were to have disclosed intimate, but irrelevant, details about his personal life that were not reasonably related to the question of disqualification, he could have set a pernicious precedent.” What a ridiculous straw-man argument. Ware hasn’t come close to establishing that the disclosures at issue were “irrelevant” and “not reasonably related to the question of disqualification.”

The “pernicious precedent” that Walker and now Ware are working to set is that a judge can conceal basic facts calling into question his impartiality in a proceeding so long as he is advancing a cause favored by media and legal elites. So much for the overriding public interest in impartial application of recusal principles.


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