Bench Memos

Misguided Amicus Brief Defending Prop 8 Non-Recusals—Part 3

In addition to the direct case for then-district judge Vaughn Walker’s recusal under 28 U.S.C. § 455, the bulk of my amicus brief in the Prop 8 case is dedicated to documenting Walker’s egregious course of misconduct—a course of misconduct that itself constitutes prima facie evidence that Walker was so biased that he should have recused himself (and that also counsels extreme skepticism about any assertion or finding that Walker made). To this, the Kaye/Gillers amicus brief (link to be added when available) responds only with the proposition that “judicial rulings alone almost never constitute a valid basis for a bias or partiality motion” (p. 29 n. 11 (emphasis added)). I take no issue with that proposition, but the “almost never” phrase signals that there are exceptional circumstances where judicial rulings alone would constitute a valid basis for impugning a judge’s impartiality. If such circumstances ever exist, Walker’s extraordinary rampage presents them. (And, of course, those rulings need not be considered “alone” but may be combined with the case for Walker’s recusal under section 355.)

The Kaye/Gillers amicus brief also argues that the recusal issues are not properly presented to the Court. But, irrespective whether the issues are within the scope of the questions presented, the Court’s supervisory power over the lower courts is surely broad enough to enable it to vacate the ruling of an improperly constituted panel and of a grossly biased judge. The Court has made clear that its rule that it will consider only the questions presented (or questions fairly included in the questions presented) “is prudential; it does not limit [the Court’s] power to decide important questions not raised by the parties.” Izumi Seimitsu Kogyo Kabushiki Kaisha v. US Philips Corp., 510 U.S. 27, 32 (1993) (internal citations omitted).  While an exception to the rule should be exercised “only in the most exceptional cases,” id. at 33, the misconduct by Walker and the non-recusals by Walker and by Judge Reinhardt satisfy that standard. Further, one of the exceptions the Court has made in the past also fits here: “We have also decided a case on nonconstitutional grounds even though the petition for certiorari presented only a constitutional question.”  Id. (citing cases).


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