June 14, 2011

As Gomer Pyle Would Say...

Hatched by Dafydd

Follow-up to our post Monday about Chief Judge James Ware, former Chief Judge Vaughn R. Walker, and Chief Inspector Jacques Clouseau: To nobody's astonishment, Judge Ware decided not to vacate the risible ruling of his close buddy and predecessor in the post of Chief Judge of the Northern District of California... despite the extreme personal interest Judge Walker had in the outcome of the case he decided.

Rather, Walker's ten-year relationship with a same-sex partner, coupled with his decision to throw out a citizen's initiative that was passed by California voters (twice!) to restrict marriage to one man, one woman, and therefore allow a class of people that includes Judge Walker himself to marry their same-sex partners, stands as an eternal monument to the limits of judicial impartiality.

Simply put, federal judges need to recuse themselves from a case if and only if two criteria are met:

  • The case poses a conflict of interest for the judge; and,
  • The judge has no interest whatsoever in the case -- because otherwise he will hear it himself to make darn sure the decision lands on the side that personally benefits the judge himself.

Just demonstrate that both these two conditions are met, and the judge will happily recuse himself without waiting for another thing.

By the way, I hope you understand the bombshell of Judge Walker's ruling: If the Supreme Court ultimately affirms this decision, then they will have held that the U.S. Constitution mandates that every state, county, city, village, hamlet, and farm in the United States adopt same-sex marriage, because that is what the Founding Fathers intended all along.

I think you might have a stake in this decision, even if you don't live in the Northern District of California -- that is, in San Francisco.

Hatched by Dafydd on this day, June 14, 2011, at the time of 11:50 PM


The following hissed in response by: SeanF

A question about the "need" for Judge Walker to recuse himself in this case...

What if we define the issue differently: The law in question restricts a social benefit to heterosexual couples. Finding in favor of the law would thus benefit heterosexual couples. Therefore, any heterosexual judge must recuse themselves, because they also have "skin in the game."

In short, any case which can be summarized as "A vs B" would require A-type judges to recuse just as much as it would require B-type judges to recuse.

The above hissed in response by: SeanF [TypeKey Profile Page] at June 17, 2011 9:35 AM

The following hissed in response by: Dafydd ab Hugh


This is the general argument advanced by the Left and by gay activists: "Hey, if a heterosexual judge ruled that Prop 8 was constitutional, that's the same thing as a gay judge ruling that it's unconstitutional!" So you think no judge should ever recuse himself from any case?

No, the answer is that, while a conservative, straight judge might have a vague feeling of triumph deciding in favor of Prop 8, he doesn't have any direct benefit from that ruling.

And neither, by the way, does a gay judge who is not involved in a long-term, exclusive relationship with a gay partner. I would not call for recusal by a judge just because he is gay; that's not a close enough connection.

Let's recast the argument in less politically and emotionally charged terms. Suppose some idiot woman who spilled hot McDonald's coffee on her lap (while driving and holding the coffee between her legs) sues Micky-D's. Do you not see a difference between calling for the recusal of a judge because he invests in a mutual fund that carries some stock in General Mills -- and calling for the recusal of a judge who owns $75,000 worth of stock in MCD itself?

That is the distinction here: Former Chief Judge Vaughn Walker should have recused himself, but not because he is gay; that's not close enough of a personal connection to the outcome of the case. Rather, he should have recused himself because he is in the exact same class as the plaintiffs: a gay person in a committed, long-term relationship with a same-sex partner.

Similarly, a heterosexual man who is an outspoken opponent of same-sex marriage -- that is, in the same class as the defendants -- should also have recused himself from the case. In fact, we could go a bit further: I would expect a judge to recuse himself from this case if he is a member of a small and very conservative church (a specific church, not a whole religion) that has a history of arguing against same-sex marriage and intervening in court cases on the subject, even if the judge himself has never publicly expressed an opinion on the subject. Just as I would expect any member of a political group advocating same-sex marriage to recuse himself.

But not just any old judge who happens to be gay. Or straight.


The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at June 17, 2011 12:56 PM

The following hissed in response by: Chris Balsz

I don't know that a gay man could not fairly hear the issue. I do know that Vaughn Walker did not. And that is why the challenges to his ruling get any traction. The courts have to deal with the procedural and evidentiary landmines this guy has laid in the 9th District.

The above hissed in response by: Chris Balsz [TypeKey Profile Page] at June 17, 2011 1:11 PM

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