Bench Memos

Law & the Courts

Character Assassination, Indeed

In an unhinged screed, Slate’s Mark Joseph Stern contends that Donald Trump’s baseless claim that federal district judge Gonzalo P. Curiel should recuse himself from litigation involving Trump University is similar in nature to the arguments that I and others, in a supposed campaign of “character assassination,” advanced for Judge Vaughn Walker’s recusal from the anti-Prop 8 case. That contention is frivolous and insipid.

Stern contends that I argued that Walker “was incapable of impartiality due to his [sexual] orientation.” But in the first of my two writings he links to, I stated (emphasis added):

In terms of his judicial performance in the anti-Proposition 8 case, the bottom-line question that matters isn’t whether Walker is straight or gay. It’s whether he is capable of ruling impartially. I have no reason to doubt that there are homosexuals who could preside impartially over this case, just as I have no reason to doubt that there are heterosexuals whose bias in favor of, or against, same-sex marriage would unduly skew their handling of the case.

And in the second, I present this argument (emphasis added):

In taking part in the Perry case, Judge Walker was deciding whether Proposition 8 would bar him and his same-sex partner from marrying. Whether Walker had any subjective interest in marrying his same-sex partner — a matter on which Walker hasn’t spoken — is immaterial under section 455(a). (If Walker did have such an interest, his recusal also would be required by other rules requiring that a judge disqualify himself when he knows that he has an “interest that could be substantially affected by the outcome of the proceeding.”) Walker’s own factual findings explain why a reasonable person would expect him to want to have the opportunity to marry his partner: A reasonable person would think that Walker would want to have the opportunity to take part with his partner in what “is widely regarded as the definitive expression of love and commitment in the United States.” A reasonable person would think that Walker would want to decrease the costs of his same-sex relationship, increase his wealth, and enjoy the physical and psychological benefits that marriage is thought to confer.

Because Walker was deciding how the law in the very jurisdiction in which he lived would directly govern his own individual rights on a matter that a reasonable person would think was very important to Walker personally, it is clear that Walker’s impartiality in Perry “might reasonably be questioned.”

Perhaps there is reasonable room to disagree with my (and the Prop 8 defenders’) argument (though Walker’s defenders at the time didn’t meaningfully engage it, and neither did the judge who ruled that Walker wasn’t obligated to disqualify himself), but I don’t see how anyone could regard that argument as remotely similar to Trump’s.

(The remaining allegations that Stern levels against me are also wrong, as anyone who reads the materials he links to will discover.)

Most Popular

Culture

Cold Brew’s Insidious Hegemony

Soon, many parts of the United States will be unbearably hot. Texans and Arizonans will be able to bake cookies on their car dashboards; the garbage on the streets of New York will be especially pungent; Washington will not only figuratively be a swamp. And all across America, coffee consumers will turn their ... Read More
National Security & Defense

The Warmonger Canard

Whatever the opposite of a rush to war is — a crawl to peace, maybe — America is in the middle of one. Since May 5, when John Bolton announced the accelerated deployment of the Abraham Lincoln carrier group to the Persian Gulf in response to intelligence of a possible Iranian attack, the press has been aflame ... Read More
Immigration

The Merit of Merit-Based Immigration

Having chain-migrated his way into the White House and a little bit of political power, Donald Trump’s son-in-law is shopping around an immigration plan. And if you can get past the hilarious juxtaposition of the words “merit-based” and “Jared Kushner,” it’s a pretty good one. As things stand, the ... Read More
NR Webathon

Socialism Is about Taking, Not Giving

The snakiest of snake-oil pitches goes like this: Give us some of your freedom and we’ll take care of you. Socialists have been making similar claims back as far as Plato. The end result doesn’t have to be Venezuela. It can just be . . . Europe. What’s wrong with Europe? Despite a turn away from ... Read More
NR Webathon

We’ve Had Bill Barr’s Back

One of the more dismaying features of the national political debate lately is how casually and cynically Attorney General Bill Barr has been smeared. He is routinely compared to Roy Cohn on a cable-TV program that prides itself on assembling the most thoughtful and plugged-in political analysts and ... Read More