Patterico's Pontifications


Judge Walker Comes Out and Bob Egelko’s Decision Not to Pursue or Tell us the Truth

Filed under: General — Aaron Worthing @ 1:33 pm

[Guest post by Aaron Worthing; if you have tips, please send them here.  Or by Twitter @AaronWorthing.]

Strap yourself in, because this is a long one—with original reporting!

You might remember that Judge Vaughn Walker is the judge who sat in the Proposition 8 case, which held the newly amended provision in California’s Constitution limited marriage to straight couples to be unconstitutional.  And you might remember there were reports that he was gay that surfaced late last year.  Patrick wrote about the issue here.  And I wrote about it, here.  I will quote myself because a lot of you were not exposed to my opinion the first time, and I think I could really put myself reasonably close to being in the judge’s shoes:

Look let me personalize this.  So let’s take an example: Loving v. Virginia. That was the case that said that laws banning interracial marriage were unconstitutional.  That’s right, the case where they struck down tested the legality of “miscegenation” laws was called LOVING v. Virginia. How perfect was that for a name?  It was like as if it was the state of Virginia opposed to people loving each other.

Now in fact it was about a couple with the last name “Loving.”  I remember off hand that the wife was named Mildred, a black woman.  Her husband was white, but I forgot his name.  They had gone into Washington, D.C. to marry, and then came back to Virginia.  The cops busted in on them, and arrested them.  The law in Virginia made it a crime to leave Virginia, get married outside of one’s “race” and then return to the state, if you intended to do that all along.

So that probably means that first it went through the state Circuit Courts here in Virginia, or maybe the District Courts first if the punishment was minor enough.  Then it probably went straight to the Supreme Court of Virginia, and from there was appealed to the United States Supreme Court.  I mean I suppose it is possible to have gone the habeas corpus route, but I doubt it.

So imagine I am that lower court judge. And imagine I love the same woman I am married to today, who is mostly Filipina.  Imagine I haven’t married her yet.  Do you think I could ever rule neutrally in that case?  Of course not.  I would be ruling on my right to marry the woman I presently loved.

And of course interracial marriage is different than gay marriage….  If I wasn’t currently in love with someone of another “race,” yeah such laws might be seen as reducing my options, but if I was gay, an anti-gay marriage law would keep me from marrying everyone I was likely to fall in love with.  It wouldn’t be reducing my options, it would be eliminating all of them completely.  I mean how can Judge Walker possibly be even-handed when his legal rights are on the table?

So if he is in a relationship serious enough to mean that he would like to marry that man, I don’t see how he could possibly be unbiased.  And if he was “merely” gay, the issue is not as acute, but it is there.

At the time, I don’t think anyone seriously doubted the story, if only because it would be so incredibly irresponsible of the San Francisco Chronicle if they weren’t sure.  But in a recent SF Chron story, Judge Walker has verified it and only lightly addressed the ethical issue:

The now-retired federal judge who struck down California’s ban on same-sex marriage shared his reflections with reporters for the first time Wednesday, saying that the trial should have been televised and that he never considered stepping aside because he is gay.

“If you thought a judge’s sexuality, ethnicity, national origin (or) gender would prevent the judge from handling a case, that’s a very slippery slope,” former Chief U.S. District Judge Vaughn Walker told reporters in a conference room at the San Francisco courthouse where he served for 21 years.

“I don’t think it’s relevant,” he said.

Now, to be blunt, I considered that at best a flippant consideration of this weighty issue.  So I wrote the following email to the author of the article, Bob Egelko, and the exchange was revealing:

From: Aaron Worthing []

Sent: Thursday, April 07, 2011 5:35 PM

To: Egelko, Bob

Subject: your article on Judge Walker

I saw you wrote an article on Judge Walker, in part confirming that he was gay.

He claims that it is irrelevant, but in fact there is a serious ethical issue.  I lay out my argument here: [linking to my old post].

But here’s the short version.  He was ruling on his right to marry anyone he might be interested in marrying.  And when your own personal rights are on the docket, you cannot rule in the case.  It’s that simple.

So I was wondering if anyone asked about that?  Or would it be possible for someone to ask that follow up question?

I thank you for your time and consideration.

Aaron Worthing, Esq.

That prompted this reply:

On Thu, Apr 7, 2011 at 8:51 PM, Egelko, Bob <> wrote:

Sorry, I don’t agree. If Judge Walker had a marriage license application pending or immediate plans to marry, he would be ruling on a case that affected his rights. As it is, he has no more of a conflict than a female judge, or a devoutly Catholic male judge, ruling on the right to abortion. Or a judge of any race ruling on integration or affirmative action in communities where those affect day-to-day lives. Or a heterosexual supporter of Prop. 8, who believed it would protect his own marriage or his children, ruling on its validity.

Now there are several things to note.  First, he does seem to concede that under some circumstances Judge Walker should have recused himself.  That will be important in a minute.  Also, he wants to draw a distinction between wanting to get married in the near future, and wanting to get married someday.  But aren’t both situations equally implicated by the ruling?  Both dreams would have to be destroyed if he rules against gay marriage.  Its at most a difference in how acute the problem is.

And notice he also misses the issue of having your legal rights on the docket.  A catholic male judge might have a certain preferred outcome in an abortion case, but he is not ruling on his personal rights.  Ditto on affirmative action—a judge typically has no rights on the docket in an affirmative action case.

Likewise he doesn’t understand the difference between degrees of bias. By the logic of those opposed to proposition 8, yes, everyone has a bias.  Straight people want to keep gay people out of the institution of marriage to preserve it and gay people want to be let in, so they can get married.

When you are in a situation where everyone is biased, what you do is try to find someone with the least bias.  For instance, everyone has an interest in the vitality of a free press.  So every judge would have cause to be accused of bias in, say, New York Times v. Sullivan (limiting libel liability).  But just because you can’t find someone with no interest in the outcome of the case doesn’t mean it is suddenly okay for the judge to be holding stock in the NY Times as decides their potential liability.  That’s what this is like.  There is a world of difference between being biased because you have an interest in the institution of marriage generally v. determining whether or not you have the right to marry anyone you are likely to want to marry.

I replied as follows:

From: Aaron Worthing []

Sent: Thursday, April 07, 2011 6:10 PM

To: Egelko, Bob

Subject: Re: your article on Judge Walker

Mr. Egelko

First, thanks for taking the time to respond.

Second, even if you disagree, don’t you think that is a question that should be posed?  You don’t think it is even reasonable to ask and get his reaction?  I can assure you that many very serious lawyers have had a concern about this.

For instance, here’s Patrick Frey, who opposed Proposition 8 on the subject: [the link above from Patrick.]

Feel free to say we are wrong, but shouldn’t you at least ask him the question?

Third, did you ask him if he had any long term relationships (presumably with another man)?  Whether he had any plans to marry such person?


And here is the somewhat maddening response:

On Thu, Apr 7, 2011 at 9:14 PM, Egelko, Bob <> wrote:

He spoke some about his partner, but I think it’s a private matter that’s pretty much his business, not ours.

Get that?  So first, he says that unless Judge Walker got a marriage license or has plans to marry, it’s not an ethical problem.  Then when I ask whether those conditions were met, suddenly he wants to respect the judge’s personal privacy.

I replied:

From: Aaron Worthing <>

Date: Thu, 7 Apr 2011 21:27:23 -0400

To: Egelko, Bob<>

Subject: Re: your article on Judge Walker

Whether he has committed a violation of the Code of Judicial Conduct is not a private matter.  If he wanted to keep his private life private, he has to recuse himself.  But he cannot sit in on that case and pretend his potential biases are off limits.

He is required to disclose every potential bias.  For instance, in the realm of finance he is required to disclose every single stock he owns.  When he entered into this case he had a duty to disclose the fact he was gay and the nature of his relationship with any person, so that the lawyers would be fairly warned that there might be a serious ethical issue.

And check the Code of Judicial Conduct.  It is not enough to actually be unbiased but to avoid even the appearance of bias.

These are questions that must be asked and answered, to the public, so that they can feel confident that he ruled on that case neutrally.


There was no reply.  As of about two hours ago, I sent him this final email:


Date    Fri, Apr 8, 2011 at 2:29 PM

subject Your Article on Judge Walker

Mr. Egelko,

I wanted to get a final and clear answer to the questions I had.

1) Did you ask Judge Walker about the nature of his relationship on the day of the Proposition 8 trial, to determine if he had an interest in himself being married?

2) Did you ask him about the ethical issues involved in sitting on the case as a gay man?

3) And if you did, will you reveal those answers to the world?

4) And if you didn’t ask, do you plan to follow up?

I will also note that in the pages of your own newspaper, a column appeared saying the following:

If Judge Walker is indeed in a long-term, same-sex relationship, he certainly has an “interest that could be affected substantially by the outcome of the proceeding” – he and his partner are now permitted to marry! – and that, according to Judge Walker’s own finding, has financial benefits as well. Such conflicts would have required recusal, and cannot be waived by the parties.

If the relationship does not create such a conflict, it nevertheless creates the circumstance “in which the judge’s impartiality might reasonably be questioned.” That ground for disqualification can be waived by the parties, but the judge must “disclose on the record the basis of the disqualification” and then only continue after the parties have agreed in writing to his continued involvement. No such disclosure and agreement occurred in this case.

You can read the whole thing, here: [link]

You have argued that it was a private matter, but the fact is that judges give up their privacy to sit on cases.  It does suck on some level, but it is unavoidable.

These are serious issues of judicial ethics that should not simply be ignored because you don’t think it is important.  We the people should decide what is relevant.

I thank you for your time.


It has been two hours and he has yet to respond.  I will certainly tell you if he responds.

Now it is worth noting that Mr. Egelko is not an amateur.  His biography states that he in fact went to law school and is a member of the California Bar.  But nonetheless he has blown off serious questions about Judge Walker’s ethical conduct in this trial, because he doesn’t happen to agree that they are concerns—indeed, he is not even willing to tell the public whether Judge Walker has violated the rules of ethics—apparently because in his personal opinion it is not a problem.  With all due respect, Mr. Egelko, shouldn’t we be the judge of that?

Toward the end of that article, however, Judge Walker said something very revealing about media coverage of the issue:

The Chronicle first disclosed Walker’s sexual orientation during the trial, a fact he had neither discussed publicly nor tried to conceal. He said Wednesday he’d been surprised that it hadn’t surfaced earlier and had surmised that “every journalist had decided it was not news.”

Sure, with 5,000 stories about how Clarence Thomas must recuse himself because he got corporate cooties from the Koch brothers, or stories claiming that Judge Feldman in New Orleans can’t rule on the drilling moratorium because he once owned oil stocks and therefore has oil cooties, how on earth is it news that a man ruled that the evangelical Christians who wrote the Fourteenth Amendment intended to legalize gay marriage, and it just took us 142 years to figure it out, was gay?

Someone needs to sit Judge Walker down and ask him those questions.  To do anything else is journalistic malpractice.  Indeed, bluntly, the Chief Judge of that District Court needs to do so as well.

[Posted and authored by Aaron Worthing.]

47 Responses to “Judge Walker Comes Out and Bob Egelko’s Decision Not to Pursue or Tell us the Truth”

  1. Homophobe!!!!!!!!

    Torquemada (fccc6f)

  2. Lol well, glad we got that out of the way, Torque.

    Aaron Worthing (e7d72e)

  3. Good luck getting an answer — at least you got an initial response. When I prepared this post about a San Francisco Chronicle article related to Proposition 8 last August, both Patrick and I emailed the reporter … and we received no reply.

    aunursa (a2a019)

  4. I’m not sure I agree with the significance of what you see as the ethical issue, Aaron. Would it have been impermissible for a black judge in the 1950s and 1960s to rule on the constitutionality or interpretation of the Civil Rights laws? If a black judge had elementary school-age children, would he have been ethically barred from ruling in Brown v. Board of Education?

    I agree that gay marriage is not in the same class of issues as the racial civil rights issues raised in the 50s and 60s (and still fought at some levels today), but I don’t see any fundamental difference with regard to the ethical issue you raise.

    More broadly, ethical rules generally only require recusal of judges when they have an immediate and direct interest in the outcome of the particular case, not the long-term legal implications of that case. Thus, judges who have large amounts of wealth who engage in estate planning of some sort or another can nevertheless rule on estate planning cases, even if that may set some precedent which may, hypothetically, one day impact that judge… so long as he doesn’t have a financial interest in the estate plan at issue in the case before him. Likewise, judges can rule in tax cases, even though their rulings may have an impact on what taxes the judges themselves may owe, as long as the judge has no financial interest in any of the parties before him.

    I suggest you do some significant research on exactly what the ethical rules require before continuing down this road. I don’t think they are nearly as broad as you are suggesting.

    PatHMV (5189f9)

  5. pat

    > Would it have been impermissible for a black judge in the 1950s and 1960s to rule on the constitutionality or interpretation of the Civil Rights laws?

    black people and white people (and asians, etc.) all have an interest in how a case on school desegregatin turns out.

    i would, however, favor a childless judge in those circumstances.

    > Thus, judges who have large amounts of wealth who engage in estate planning of some sort or another can nevertheless rule on estate planning cases,

    i think the rule there is more about the fact that all of us are going to die. we all have that bias.

    > even though their rulings may have an impact on what taxes the judges themselves may owe, as long as the judge has no financial interest in any of the parties before him.

    What if the ruling was about the legality of a deduction and if he ruled it illegal, he would have to give back some money to the federal gov?

    moreover, you ignore that the reporter is not even interested in talking about whether the judge plans to marry his partner. even though he admitted it was relevant.

    Aaron Worthing (e7d72e)

  6. It is not possible for me to care less about the Judge’s sexual preference. Having said that, the double standards are interesting in their application.

    JD (3ee1ee)

  7. First a prompt reply, and a nice paragraph’s worth, at that.

    Next, a prompt reply, but a one-liner, as your questions home in, cutting off escape routes.

    When your next two emails close off logical escape entirely, the response is radio silence.

    Deafening — and telling.

    P.S.: He went from Stanford undergrad to … McGeorge? for law school? (OK, I guess I’m a snob, but … )

    Mitch (890cbf)

  8. The fact that the newspapers sat on this info is the surest proof that they thought it was a problem.

    Kevin M (73dcc9)

  9. According to Scary Reid if you want to prevent a government shutdown you want the government to shutdown to prevent women from getting mammograms………….how does that make sense?

    DohBiden (984d23)

  10. Walker’s orientation in itself was not grounds for recusal; it was his pattern of conduct during the case, as pointed out in this amicus brief. Some excerpts:

    The district judge then said: “I don’t have to have evidence?” ER 351:2. Counsel’s response: “You don’t have to have evidence of this point if one court after another has recognized — let me turn to the California cases on this.” ER351:3-5 (emphasis added).

    Only the underlined portion of the passage is what the district judge quotes — utterly out of context — in his opinion.

    Counsel then proceeded to present California cases stating that the “first purpose of matrimony by the laws of nature and society is procreation,” that “the institution of marriage serves the public interest because it channels biological drives … that might otherwise become socially destructive and it ensures the care and education of children in a stable environment,” and that (in a ruling just two years ago) “the sexual procreative and childrearing aspects of marriage go to the very essence of the marriage relation.” ER351….

    Further, as proponents demonstrate, the district judge’s extravagant claim rests almost entirely on the testimony of a single expert witness for plaintiffs, Professor Letitia Peplau, who specifically disclaimed that her limited statistics on marriage and divorce rates in Massachusetts were “necessarily serious indicators of anything.” ER241:1-2. The district judge’s claim also simply ignores the admission by another of plaintiffs’ expert witnesses, Professor Nancy Cott, that it is “impossible” to know what the consequences of same-sex marriage would be because “no one predicts the future that accurately.” ER226:17-22. And the district judge’s claim also fails to acknowledge, much less address, evidence in the record about negative trends in the Netherlands — on marriage rates and nonmarital childrearing — that were exacerbated in the aftermath of that country’s adoption of same-sex marriage. See Proponents’ Brief at 101-102…..

    We respectfully submit that the inescapable explanation for the district judge’s performance in this case is that he harbors a deep-seated animus against traditional marriage and that he has been unwilling or unable to contain his animus. That understanding ought to inform this Court’s entire review of the district judge’s ruling.

    See also “The Most Egregious Performance Ever By a Federal Judge“.

    And then of course, there is the ruling itself, where he defied binding precedent. Let us start with Baker v. Nelson, 409 U.S. 810 (1972), where the U.S. Supreme Court, including Justices Harry Blackmun (who next year would author Roe v. Wade, 410 U.S. 113), William Brennan, and Thurgood Marshall, unanimously dismissed, for want of a substantial federal question, an appeal alleging that a Minnesota statute defining marriage as between one man and one woman violated the due process rights to marriage and privacy and violated equal protection. He defied Adams v. Howerton, 673 F.2d 1036 (9th Cir. 1982), which held that laws defining marriage as between a man and a woman “has a rational basis and therefore comports with the due process clause and its equal protection requirements”. id at 1042. See also In Re Marriage of J.B. and H.B. (upholding Texas’s Proposition 2 against due process and equal protection challenges), 326 S.W.3d 654 (Tx. 5th Cir. Ct. of Appeal 2010) In his rational basis “analysis”, he defied FCC v. Beach Communications (holding that “is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.”) 508 U.S. 307 at 315 (1993) and Davis v. Beason (holding that seeking to establish a free, self-governing commonwealth on the basis of families consisting in and springing forth from unions of one man and one woman in the holy estate of matrimony) 133 U.S. 333 at 344, 345. In holding that homosexuals constitute a suspect class, he defied High Tech Gays v. Defense Industrial Security Clearance Office (holding that homosexuals are not a suspect class), 895 F.2d 563, 573-74 (9th Cir. 1990), Flores v. Morgan Hill Unified School District (same), 324
    F.3d 1130 at 1137 (9th Cir. 2003), and Witt v. Department of the Air Force (same), 527 F.3d 806 at 821. See also Cook v. Gates (same), 528 F.3d 42. (1st Cir. 2008)

    And even if some form of injunctive relief was appropriate (which it is clearly not given binding precedent) , by issuing a broad injunction that purports to stop the state from enforcing Proposition 8, he again defied binding precedent. By enjoining the governor, attorney general, and the recorder of vital statistics, he defied Ex Parte Young (holding that the defendant being enjoined “must have some connection with the enforcement of the [allegedly unconstitutional] act.”) 209 U.S. 123 at 157, and Los Angeles County Bar Association v. Eu (holding that the enjoined defendants’ “connection must be fairly direct; a generalized duty to enforce state law or general supervisory power over the persons responsible for enforcing the challenged provision will not subject an official to suit.”) , 979 F.2d 697 at 704 (9th Cir. 1992). (The act that allegedly denied the civil rights of the plaintiffs was the denial of the marriage license, and that act was only done by the defendant county clerks.) See also Bishop v. Oklahoma, No. 06-5188N.D. Okla. (D.C. No. 04-CV-848-TCK) (dismissing Oklahoma governor and attorney general as defendants in a constitutional challenge against Question 711) (10th Cir. 2009) (unpublished) In awarding relief beyond the individual plaintiffs, he defied Zepeda v. INS, holding that a court may not determine the rights of non-litigants) 753 F.2d 719 at 726 (9th Cir. 1983), Meinhold v. U.S. Department of Defense (overturning injunction except to the extent it provided plaintiff relief), 34 F.3d 1469 at 1480 (9th Cir. 1994) See also Virginia Society for Human Life v. FEC, (narrowing
    nationwide injunction to the plaintiff in facial constitutional challenge) 263 F.3d 379 at 394 (4th Cir. 2001)

    Michael Ejercito (64388b)

  11. Aaron,
    I seem to remember that this was whispered about before the hearing. I can’t remember where I saw it, but I think it was right after he was chosen to hear the appeal. Somewhere lost in those idiotic maneuvers about broadcasting it and the plotting with the chief justice. IIRC this was mentioned as one reason Walker should have recused himself. I though that was on Patterico’s blog but perhaps not. Maybe Volokh Conspiracy? Anyway, good post and I really can’t figure out why this hasn’t made bigger news, but it is now mentioned in his Wiki entry.

    Dave in OC (d1d92b)

  12. None of this is surprising. If you have any questions about it, I suggest you read Angelo Codevilla’s essay again.

    Mike K (8f3f19)

  13. IMO, the author of the SF Chronicle piece should have asked the follow-up question.

    Even if his argument is completely correct, and there was no valid reason for Walker to recuse himself, that’s something for the judge to have said, not for the interviewer to presume.

    malclave (1db6c5)

  14. I sincerely hope a Mortal Kombat arcade machine falls and crushes Michael Moore’s nether regions.

    DohBiden (984d23)

  15. ‘“I don’t think it’s relevant,” he said.’

    Well, it wouldn’t be relevant if we had judges who ruled based on the law, rather than based on their own personal agendas…only we don’t.

    So, it is relevant.

    Dave Surls (e969a9)

  16. I don’t think Obama is relevant.

    DohBiden (984d23)

  17. mal

    exactly my point. or at least one of my points.

    Aaron Worthing (73a7ea)

  18. I don’t believe that the ethical rules require a judge to recuse himself based on the legal implications of his ruling in a particular case… only if he has a financial or other personal interest in one of the parties to the case in which he is ruling. If I’m wrong on that point, please give me a cite. In other words, I don’t think the judge must recuse himself simply because he may one day be affected by the legal rule he is pronouncing; he must recuse only if he has an interest in the parties to the case itself.

    PatHMV (299e25)

  19. Michael,
    I should have looked at your links. Yes, now I remember it was Ed Whelan in NRO who was writing about these issues and the idiotic broadcasting/recording attempt to further intimidate the witnesses for 8. The machinations of the judges in this case are as troubling as they are illuminating. Thanks for reminding me…

    Dave in OC (d1d92b)

  20. I agree with Michael Ejercito that Judge Walker’s behavior throughout this case was, generally speaking, horrendous and indicated that he had clearly prejudged the case before hearing any evidence about it.

    But that’s a very different reason for recusal than the mere fact that he’s gay and could hypothetically one day want to marry another gay man.

    PatHMV (299e25)

  21. This guy whether straight gay or bi is a pathetic piece of work.

    DohBiden (984d23)

  22. i think a gay judge judging a case about so called “gay rights” is gay

    newrouter (b55202)

  23. or maybe queer

    newrouter (b55202)

  24. It is my understanding that individuals who are gay do not share equal convictions as to having same sex marriage legalized. This being the case, I don’t think his being homosexual is of necessity a disqualification, but I believe the lack of disclosure is corresponding to a judge who refused disclosure of other types of potential conflicts/reasons for bias.

    Is there a (good) rerason for this to come out after he has apparently retired, that is, would there have ben exposure to professional discipline had he still been on the bench? If guilty of professional misconduct discovered after retirement can his pension be altered??

    Retiring doesn’t stop a physician’s exposure to litigation- but then again doctors don’t make the rules, do they?

    MD in Philly (3d3f72)

  25. he wants the world to know he’s got to let it show

    happyfeet (a55ba0)

  26. I asked my friend P if he was gonna marry A and he said maybe, that it was looking like it might could head that way but it was too soon and they would probably live together for awhile first and they haven’t even moved in together yet.

    Which, I can’t fault the prudence of any of that.

    But he didn’t say anything about it not being an option. I think California people starting to take the inevitability of gay marriage for granted.

    happyfeet (a55ba0)

  27. *are* starting I mean

    happyfeet (a55ba0)

  28. PatHMV:

    I’m not sure you’re following Aaron’s point. We don’t know to what extent Judge Walker is considering marriage because Egelko refused to ask.

    Patterico (906cfb)

  29. happyfoot, why start worrying bout grammar now?

    Kevin M (73dcc9)

  30. Patrick, my point is that I don’t think it makes a legal difference, regarding whether the judge is legally required to recuse himself under the ethics rules, whether he is considering or contemplating marriage, or engaged, or anything else.

    Now, there are plenty of things that are legitimate items of public concern that reporters should ask about, regardless of whether the answer would or could reveal legal grounds for recusal, so I’m not defending the reporter for not following up on the question. My point is simply that I’ve not yet been pointed to any provision of the judicial canon of ethics which would require the judge to recuse himself from this case even if he were considering marriage to another gay man.

    And certainly the rule of whether he must recuse himself cannot turn on whether he is willing to admit that he is “considering” marriage, can it?

    PatHMV (299e25)

  31. “And certainly the rule of whether he must recuse himself cannot turn on whether he is willing to admit that he is “considering” marriage, can it?”

    yes we need acorn judges judging housing cases or klopptheberger judging scott walker. we are family.

    newrouter (b55202)

  32. There’s a larger issue, in Reinhardt refusing to recuse, re Ramona in the ACLU, DOJ choosing not to defend the DOMA challenge, BP given first crack at
    attempting to drill, in the Gulf, Countrywide, being
    totally absolved of criminal liability, whereas Thomas, Scalia, Feldman, are under constant assault,
    in part because they actually understand the law.

    chris matthews (cfef6a)

  33. _______________________________________

    he never considered stepping aside because he is gay.

    I know that Vaughn Walker can’t be categorized as a stereotypical liberal, although he can be judged as being a very squishy Republican. But I believe the intrinsic nature of homosexuality is likely to push any person who manifests that behavior to the left, particularly when it comes to socio-cultural matters. That means a 100%-certified conservative (or even a 100%-staunch centrist) among gays is about as uncommon as a 100%-certified conservative is among the black community.

    And of course interracial marriage is different than gay marriage

    A person can’t be black (certainly in terms of external characteristics) one day, white the next. Or visa versa. However — even more so given the bisexual history of many self-described gays — a male can be into females one day, into guys the next. And visa versa. My increasing disdain for the idea of same-sex marriage is influenced by factors like that—not to mention that accommodating such behavior pushes modern culture in the direction of being even more over sexualized.

    As for those people (most of them on the left) who claim humans shouldn’t be forced to conform to outside standards — that humans should be allowed to accommodate their inner needs — since male behavior (straight, bi or gay) is intrinsically non-monogamous, the idea of faithfulness to spouse or girlfriend should be tossed out as as old-fashioned and oppressive standard.

    Mark (411533)

  34. I don’t believe that the ethical rules require a judge to recuse himself based on the legal implications of his ruling in a particular case… only if he has a financial or other personal interest in one of the parties to the case in which he is ruling.

    Under binding precedent from the Supreme Court and the Ninth Circuit, Judge Walker would not have had a stake in the case even if he had plans to “marry” his partner. See Doran v. Salem Inn,
    , 422 U.S. 922, 931 (1975) (noting that “neither declaratory nor injunctive relief can directly interfere with enforcement of contested statutes or ordinances [ like Proposition 8] except with respect to the particular federal plaintiffs”)(emphasis added) and Meinhold v. U.S. Department of Defense , 34 F.3d 1469 at 1480 (9th Cir. 1994)(overturning injunction except to the extent it provided plaintiff relief) Thus, because plaintiffs lacked standing to sue for the due process rights and equal protection guarantees of other same-sex couples, Walker would not benefit from an injunction that directed the defendant county clerks to issue a marriage license to the couples. He would only benefit if the merits of his ruling were ultimately upheld on appeal.

    But he did not do that. Instead, he issued a broad, sweeping injunction purpotedly to prevent enforcement of Proposition 8 by any state or local official with respect to anyone (including Walker and his partner). And the plaintiffs did not contest that the injunction was overbroad. In fact, they claimed (in their opposition to Chuck Storey’s motion to intervene) that the non-defendant county clerks, including Storey, are bound by the injunction to issue marriage licenses to non-plaintiff same-sex couples. Notably, in their opposition, the plaintiffs neither mentioned Meinhold nor Doran, even if to distinguish them. (They neither mentioned Young nor Bar Association, which bound the district court to enjoin the defendant county clerks and no others, if injunctive relief was appropriate.)

    But that’s a very different reason for recusal than the mere fact that he’s gay and could hypothetically one day want to marry another gay man.

    As explained above, has Walker adhered to rules on standing (specifically, that the plaintiffs had no standing to sue for the rights of other same-sex couples) any desire he had to “marry” his partner would have been a non-issue.

    Michael Ejercito (64388b)

  35. Strap yourself in, because this is a long one—with original reporting!

    Don’t you know you’re not supposed to do original reporting on a blog? That’s the province of we reporters, qualified in our unique avoidance of bias 😉

    Yes, Egelko should have asked Walker if he should have recused himself. Walker’s answer and reasoning would have been informative, and thus a service to readers. A reporter’s personal feelings shouldn’t overrule that acknowledged mission.

    Brother Bradley J. Fikes, C.O.R. (2c3371)

  36. Pat

    > An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge’s honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired.

    How exactly are we not there. Are we going to pretend he is neutral on the issue of whether or not he can ever get married? really?

    We are not made of stone. we are flesh and blood like anyone else.

    Aaron Worthing (73a7ea)

  37. A person can’t be black (certainly in terms of external characteristics) one day, white the next.

    Given that mixed-race people traditionally considered black did in fact move to new places to try to “pass” as white, this assertion is not universally true.

    Aaron (b4ec19)

  38. I’ve said it before, and I’ll say it agin.

    Only juries should be allowed to judge. Judges should never be allowed to do so.

    There’s a reason they came up with the idea of trial by jury, centuries ago.

    Even the Middle Ages guys were hip enough to know that judges appointed by the government can’t be trusted to judge fairly. And, they lived in a day when folks thought witches could turn people into newts.

    We, OTOH, have finally figured out that witches can’t really do that, but we seem to have regressed when it comes to trusting governments.

    Overall, we don’t seem to be making much progress.

    Dave Surls (d8194a)

  39. Suppose Judge Walker were trying a case in which a polygamist challenged the constitutionality of our current marriage laws. And suppose further that Judge Walker were a member of a Mormon splinter sect that practices polygamy, but he had not made this fact known and had not recused himself. Would this be ethical?

    Murgatroyd (fd5fcd)

  40. This case isn’t going to be resolved based on fact-findings, and the appellate courts are free to — and routinely do — substitute their own views on legal issues for those of the district judge. I don’t see why this issue is still important, other than as a comment on one judge’s ethics.

    Beldar (cd529f)

  41. The simple fact that people have divergent and disagreeing views on the matter shows on the face of it that the question at least ought to have been asked, not set aside as a matter of an individual’s adjudicating it in advance.

    The judge sort of sounds like, as an individual, he may not have been free of bias in the matter; but I wonder about the logic of saying he was categorically biased by his very nature as a gay person. Everybody has a nature of one sort or another, it’s unavoidable. And big over-arching questions like this have a reach that depends in a way on everyone’s nature. This wasn’t a case about who has legally inherited a car or something specific like that.

    It’s a tricky question, I’m glad I don’t have to decide it.

    The really despair-inducing thing is the way so many people in general seem to use ostensibly power-neutral positions like reporting or judging, to exercise an informal type of power. Whenever it even just appears that way, it saps that much more trust in institutions. I’m sure there are still reporters who do an unbiased job but I’ve come to find the institution of journalism in general no longer possible to trust.

    I suppose it’s been going on this way forever, but it really does feel like we’re up to our chins in it these days whereas we used to only be up to our knees. Maybe I’m just getting old, who knows.

    d. in c. (ae55d7)

  42. By your logic, only straight people should be allowed to decide whether gay people should marry. And, of course, only gay people should be able to decide whether straight people should marry. Yep, I think you thought this through very carefully.

    Dave (37466e)

  43. Dave Surls @38: Judges, shouldn’t be allowed to, uh, judge. Who could argue with logic like that?

    daniel rotter (0f6e8f)

  44. Judges, shouldn’t be allowed to, uh, judge. Who could argue with logic like that?

    Judges can still administer a proceeding. they can handle objections and explain the factual question the jury needs to decide. I don’t agree with Dave, but it’s not illogical. Lots of cases are heard by judges who don’t decide the case.

    Dustin (c16eca)

  45. I’m always amazed at how supposedly intelligent people have been so successfully brainwashed worldwide by depraved Kinseyite (see fascists like Walker. There’s no such thing as “homosex-” or “gay” or “sexual orientation” or any of this depraved propaganda by which Kinsey and co took over the world’s legal system (discussed at the above website), like his fellows among the Nazis. See the irrational fraud (homo=same+sex=opposite!) exposed by “the gay invention” at As Hitler and Stalin and now Obama have proved, it’s so easy to brainwash the whole world into doing your bidding; interesting the perverts also have to censor, silence and threaten “ex-gays” (including threatening to kill their children from their new genuine opposite sex marriage) to keep them from escaping their plantation, so what are they afraid of, the truth that will set them free? See

    Russ Davis (c348cd)

  46. Russ is … odd.

    AW – did the JournoLister ever bother to respond any further?

    JD (6e25b4)

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