Bench Memos

Order Denying Motion to Vacate Anti-Prop 8 Judgment

As anticipated, Chief Judge Ware has issued a 21-page order wrongly denying Prop 8 proponents’ motion to vacate former district judge Vaughn Walker’s anti-Prop 8 judgment on account of Walker’s failure to recuse.

I’m rushing to leave work early to take my kids to a Nats game and will defer fuller commentary until some time tomorrow. For now, I’ll simply note that Ware, rather than grappling squarely with Prop 8 proponents’ argument, disposes of it by mischaracterizing it. For example, he states that the argument for recusal rests merely on the ground that Walker “could be affected by the proceedings” (p. 2) and that “it 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” (p. 15).

In fact, the core of Prop 8 proponents’ argument is that Walker had a “significant legal interest” at stake in the case, as he was deciding whether to confer on himself a legal right to marry his long-time same-sex partner, and that Walker has no exemption from the venerable legal principle that “no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome.”

Of course, you can be sure that the same confused critics who distorted Prop 8 proponents’ argument will celebrate Ware’s distortion of it.


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