Bench Memos

Misguided Amicus Brief Defending Prop 8 Non-Recusals—Part 2

The Kaye/Gillers amicus brief (I’ll add link when I find it) in the Prop 8 case spends 16 pages trying to defend then-district judge Vaughn Walker’s failure to disclose that he was in a long-term same-sex relationship and failure to disqualify himself from the case.

Disputing my point that, by taking part in the case, Walker “was thus deciding whether Proposition 8 would bar him and his same-sex partner from marrying,” the Kaye/Gillers brief asserts that Walker “had no greater or lesser an interest in that issue than any other federal judge” (p. 17). The assertion is patently absurd: At the very broadest, the class of federal judges who would have had the same interest as Walker would consist only of homosexual federal judges living in California.

Notably, Stephen Gillers himself has previously refuted the position taken in the Kaye/Gillers brief. As I discussed here, in April 2011, in the wake of Walker’s post-retirement disclosure of his long-term same-sex relationship, Gillers wrote to Media Matters (italics added):

The fact that Walker is gay standing alone is not a basis for recusal. The fact that he is in a long term relationship with another man also is not by itself a basis for recusal. The relationship could have been a basis for recusal IF (I stress “if”) Walker wanted to marry his partner AND wanted to do so in California, but Prop. 8 stood in his way. He should not then have ruled on the single impediment to his goal of marrying in California.

In other words, Gillers recognized back then the general proposition that a federal judge must disqualify himself from a matter if a reasonable person would believe that the judge would be deciding whether to confer on himself a valuable legal right that he has a strong and particular interest in exercising. The primary difference between Gillers’s position and mine is that Gillers wrongly contended that a reasonable person wouldn’t infer from the fact that Walker was in a long-term same-sex relationship in California that he would find it valuable to have a legal right to marry his same-sex partner.

In addition to his disqualification obligation under 28 U.S.C. § 455(a) (judge shall disqualify himself from “any proceeding in which his impartiality might reasonably be questioned”), Walker would also have faced disqualification under section 455(b)(4) (judge must disqualify himself when he knows that he has a non-financial “interest that could be substantially affected by the outcome of the proceeding”) if he in fact had any interest in marrying his same-sex partner. The Kaye/Gillers brief takes issue with me for pointing out that Walker had a legal duty to disclose whether or not he had such an interest, as it maintains that “there can be no duty to disclose personal characteristics that cannot properly serve as the basis for a disqualification motion. But, once again, the Kaye/Gillers brief is at war with Gillers himself, who previously recognized that Walker would have had a duty to recuse under section 455(a) if he “wanted to marry his partner.”

The Kaye/Gillers brief also somehow faults Prop 8 proponents for not raising the issue of Walker’s disqualification “until April 2011—more than a year after the district court had entered judgment following trial” (p. 6). But it wasn’t until April 2011 that Walker disclosed that he was in a long-term same-sex relationship. In other words, it was Walker’s failure to timely disclose that information that prevented Prop 8 proponents from moving for his disqualification at the outset of the case, and it is galling for the Kaye/Gillers brief to try to shift the blame from Walker to Prop 8 proponents.  

I think that the points briefly outlined here—and more fully developed in the links and in Prop 8 proponents’ motion to vacate Walker’s judgment—suffice to refute the 16 pages (of mostly red herrings and straw-man distortions) in the Kaye/Gillers brief.


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