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.)


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