Bench Memos

Re: Vaughn Walker’s Belated Revelation

Some follow-up to my NRO essay demonstrating that former district judge Vaughn Walker’s recent revelation that he has been in a same-sex relationship for the past ten years required him to recuse from taking part in Perry v. Schwarzenegger—and now requires that his anti-Prop 8 judgment be vacated:

1. I’m pleased to see that legal ethicist Jack Marshall, who agrees with Walker’s substantive ruling against Prop 8, has come (“[r]eluctantly”) to the conclusion that Walker had a duty to disclose [his longstanding same-sex relationship] at the outset, and … was ethically bound to recuse himself.” In an analysis that tracks my own, Marshall properly recognizes that the issue is clear: “A straightforward application of the judicial ethics rules compels the conclusion that Walker should have recused himself from taking part in the Perry case.” (Emphasis added.)

2. Meanwhile, the only two defenses of Walker’s non-recusal that I’ve run across conveniently misrepresent my argument. Media Matters falsely contends that I am arguing that Walker “should be disqualified because of his sexual orientation” (I have never made that argument) and conflates that argument with my argument that Walker should have disqualified himself because he was in a long-term same-sex relationship. And Cup O’ Joel likewise wrongly claims that I am arguing that Walker’s ruling must be vacated “because Walker has recently come out of the closet and thus can’t be considered impartial.” The implications that the two bloggers claim would flow from my argument rest entirely on their confusion.

As Marshall recognizes, the arguments that Walker’s supporters conflate are clearly distinct. Because Walker was in a same-sex relationship in California and because (for the reasons I explain in my essay, which are drawn entirely from the allegations of Prop 8 plaintiffs and Walker’s own findings) a reasonable person would think that Walker would have a strong present interest in conferring on himself a right to marry his same-sex partner, it is clear that his impartiality “might reasonably be questioned.”

By contrast, the mere fact that Walker is gay does not trigger the principle that I have set forth, as (without more) it is much more remote and speculative that he would have a strong personal interest in conferring on himself a right to marry a man.

To be clear: I am not contending that the principle I have set forth exhausts the grounds for recusal under section 455(a) (where a judge’s impartiality “might reasonably be questioned”). But as Marshall properly recognizes, that principle is surely at the core of section 455(a). It’s telling that Walker’s defenders have offered no serious response to my argument but instead have resorted to misrepresenting it.

I should also note that law professor John Eastman, in an op-ed last week for the San Francisco Chronicle, preceded me in making the case that Walker’s recent revelation of his long-term same-sex relationship shows that he should have recused himself and requires that his ruling be vacated. As it happens, Eastman’s op-ed elicited the same non-responsive distortion that my essay has received: An op-ed a few days later for that same paper took issue with the claim that Walker should have recused himself because “he is, in fact, gay”—a claim that Eastman not only did not make but also specifically rejected.

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