[Guest post by Aaron Worthing; if you have tips, please send them here. Or by Twitter @AaronWorthing.]
That’s a riff off the old saying, attributed to Emerson, that “if you strike at the King, you have to kill him” which is in turn riffing off of something Patrick said the first time he blogged about Judge Walker’s potential bias in the Proposition 8 case. Applied here (and note for the slow and dishonest, the violence is purely metaphorical), that means that you don’t assert that a judge is biased unless you are almost certain that the judge will step down. And that goes double in this case, under these circumstances.
Anyway, late yesterday, Proponents of Proposition 8 have tried to strike a killing blow against Judge Walker’s ruling, seeking for it to be vacated following the recent revelation that he has been in a ten year relationship with another man. I have been hammering at this issue since February, 2010, (language warning at the link), and it is nice to finally see that we are finally going to have real action on the issue. There is no guarantee what the new judge (Walker is retired), will say on the issue, but it always annoyed me how so many people pretended it wasn’t a question at all. For all we knew, Judge Walker could have said to his paramour that the moment that gay marriage was legal in California, they would tie the knot. At the very least the parties deserved to know about the relationship.
(And if that seems intrusive, bluntly… tough on him. That’s the life of a judge. Sometimes you have to disclose things that you would prefer not to. And if he really didn’t want to answer these kinds of questions [I certainly wouldn't have wanted to answer the question of whether I intended to marry my wife, prior to finally asking her to marry me], he had an easy way to avoid them–recuse himself from the case.)
So you can read the entire motion below the fold using one of those annoying Scribd documents, but here’s the introduction of the argument, which reads like a Cliff’s Notes version of the whole brief (cutting and pasting from Ed Whelan’s triumphant post):
Fundamental to the integrity of the judicial function, and therefore to public confidence in the courts, is the judiciary’s strict fidelity to the ancient maxim that “no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome.” This principle is expressed in the Code of Judicial Ethics and is codified in federal law by statutes requiring that a judge recuse himself whenever he has an “interest that could be substantially affected by the outcome of the proceeding,” … or more generally, in any other circumstance in which “his impartiality might reasonably be questioned[.]”…
The question presented in this case is whether gay and lesbian couples have a federal constitutional right to have their relationships recognized as marriages, notwithstanding California’s state constitutional provision, adopted by the People through the initiative known as Proposition 8, reaffirming the traditional definition of marriage as a relationship between a man and a woman. Plaintiffs sought and obtained from this Court an injunction prohibiting California officials statewide from enforcing Proposition 8. The injunction effectively requires California officials to issue marriage licenses to any and all gay and lesbian couples who wish to marry and are otherwise eligible.
The district judge who issued this judgment, retired Chief Judge Vaughn R. Walker, has now disclosed to the press on April 6, 2011, that he is gay and that he has been in a committed relationship for more than 10 years.…
Given that Chief Judge Walker was in a committed, long-term, same-sex relationship throughout this case (and for many years before the case commenced), it is clear that his “impartiality might reasonably [have been] questioned” from the outset…. He therefore had, at a minimum, a waivable conflict and was obligated either to recuse himself or to provide “full disclosure on the record of the basis for disqualification,” … so that the parties could consider and decide, before the case proceeded further, whether to request his recusal. His failure to do either was a clear violation of Section 455(a), whose “goal … is to avoid even the appearance of partiality.”…
But it also must be presumed that Chief Judge Walker had a nonwaivable conflict as well. For if at any time while this case was pending before him, Chief Judge Walker and his partner determined that they desired, or might desire, to marry, Chief Judge Walker plainly had an “interest that could be substantially affected by the outcome of the proceeding.”… Indeed, such a personal interest in his own marriage would place Chief Judge Walker in precisely the same shoes as the two couples who brought the case.
Such a clear and direct stake in the outcome would create a nonwaivable conflict, and recusal would have been mandatory. Chief Judge Walker thus had a duty to disclose not only the facts concerning his relationship, but also his marriage intentions, for the parties (and the public) were entitled to know whether his waivable conflict was actually a nonwaivable conflict mandating his disqualification. Only if Chief Judge Walker had unequivocally disavowed any interest in marrying his partner could the parties and the public be confident that he did not have a direct personal interest in the outcome of the case in violation of Section 455(b)(4). Because he did not do so when the case was assigned to him, and has not done so since, it must be presumed that he has an interest in marrying his partner and therefore was in fact the “judge in his own case.”
In light of Chief Judge Walker’s undeniable violation of Section 455(a) and his presumed violation of Section 455(b)(4), the only responsible and just course is to vacate the judgment entered in this case. Indeed, the Supreme Court in Liljeberg held that one of the key factors that must be considered in deciding whether a Section 455 conflict disclosed after judgment requires vacatur is “the risk of injustice to the parties in the particular case,” and the Court undertook “a careful study of [a lower court judge’s] analysis of the merits of the underlying litigation” to conclude that “there [was] a greater risk of unfairness in upholding the judgment … than there is in allowing a new judge to take a fresh look at the issues.”
The course of proceedings in this case has been marked by a number of irregular and unprecedented rulings, both procedural and substantive, that give gravely disquieting force to the “appearance of partiality” created by the belated disclosure of Chief Judge Walker’s long-term, committed relationship. For example:
* Before the trial even began, the Ninth Circuit issued an extraordinary writ of mandamus to overturn Chief Judge Walker’s order requiring Proponents to turn over confidential internal communications concerning the initiative campaign….
* Also before trial commenced, the Supreme Court of the United States issued an emergency stay, pending the filing of a mandamus petition with the Court, enjoining Chief Judge Walker from video recording and disseminating the trial proceedings to other federal courthouses. The Court found that Chief Judge Walker had “ ‘so far departed from the accepted and usual course of judicial proceedings … as to call for an exercise of this Court’s supervisory power,’ ” and that he had violated the “proper rules of judicial administration … relat[ing] to the integrity of judicial processes.”…
* Chief Judge Walker’s decision recognizing a right under the Federal Constitution for same-sex couples to have their relationships recognized as marriages conflicts with the judgment of every State and federal appellate court to consider the validity of the traditional opposite-sex definition of marriage under the Federal Constitution—including both the United States Supreme Court and the Ninth Circuit—all of which have upheld that definition. Chief Judge Walker did not cite, let alone address, any of these prior decisions.
* Chief Judge Walker peremptorily held that gays and lesbians are a suspect class under the Federal Constitution even though all eleven Circuit Courts of Appeals to consider the issue (including the Ninth Circuit) have repeatedly and squarely held to the contrary. Chief Judge Walker did not even cite, let alone address, any of these contrary precedents.
* Despite the unprecedented nature of his ruling and its sharp conflict with the uniform judgment of appellate courts throughout the Country, Chief Judge Walker refused to stay his judgment pending appeal. As a result, the Ninth Circuit was forced to issue such a stay.
* Shortly before his retirement from the bench, Judge Walker publicly displayed an excerpt from the video recording of the trial in this case in violation of (i) his order sealing the recording; (ii) this Court’s Rule 77-3; (iii) the Supreme Court’s decision in this case; (iv) the policy of the Judicial Conference of the United States and the Judicial Council of the Ninth Circuit; and (v) his own solemn assurance to Proponents that the trial recordings would be used solely in chambers.
The unprecedented, irregular, and/or peremptory nature of these rulings is difficult – very difficult – to take as the product of an objective, impartial judicial mind. And while “judicial rulings alonealmost never constitute a valid basis for a bias or partiality motion,” the rulings summarized above are nevertheless highly relevant to the inquiry under Section 455(a). The test is “ ‘whether a reasonable person with knowledge of all the facts would conclude that the judge’s impartiality might reasonably be questioned,’” thus requiring recusal under Section 455(a). A disinterested observer would necessarily consider the uniform train of extraordinary and unprecedented rulings favoring the gay and lesbian plaintiff couples and ultimately creating an unprecedented federal constitutional right for them to have their relationships recognized as marriages to be relevant facts in deciding whether Chief Judge Walker’s own long-term same-sex relationship, and the fact that he did not disclose the relationship prior to entering judgment, gives rise to a reasonable question as to Chief Judge Walker’s impartiality.
These extraordinary rulings likewise bear directly—indeed, dispositively—on the question whether vacating the judgment invalidating Proposition 8 is necessary to avoid a genuine risk of unfairness to Proponents of that measure (and to the People of the State who enacted it by initiative) and to avoid “the risk of undermining the public’s confidence in the judicial process.” We respectfully submit that the judgment must be vacated in order to ensure that “the administration of justice … reasonably appear to be disinterested as well as be so in fact.”
It is important to emphasize at the outset that we are not suggesting that a gay or lesbian judge could not sit on this case. Rather, our submission is grounded in the fundamental principle, reiterated in the governing statute, that no judge “is permitted to try cases where he has an interest in the outcome.” Surely, no one would suggest that Chief Judge Walker could issue an injunction directing a state official to issue a marriage license to him. Yet on this record, it must be presumed that that is precisely what has occurred. At a bare minimum, “[r]ecusal is required” because former Chief Judge Walker’s long-term committed relationship, his failure to disclose that relationship at the outset of the case, his failure to disclose whether he has any interest in marriage should his injunction be affirmed, and his actions over the course of this lawsuit give rise to “a genuine question concerning [his] impartiality.”
We deeply regret the necessity of this motion. But as the Supreme Court emphasized earlier in this very case, “[b]y insisting that courts comply with the law, parties vindicate not only the rights they assert but also the law’s own insistence on neutrality and fidelity to principle.… If courts are to require that others follow regular procedures, courts must do so as well.” The “regular procedure” here requires adherence to the principles that a judge may not sit on a case when “his impartiality might reasonably be questioned,” … and certainly not when he has an “interest that could be substantially affected by the outcome of the proceeding,” …. Proponents ask only that these principles be applied faithfully and neutrally here as in any other case.
Which means, holy crap, they are cribbing off of me again. I mean take that line early in:
Fundamental to the integrity of the judicial function, and therefore to public confidence in the courts, is the judiciary’s strict fidelity to the ancient maxim that “no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome.”
Now look at what I wrote:
One of the most ancient principles of justice in our system is one stated succinctly in Federalist #10: “No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.”
And look at how they tied the concern that he was biased with the very clear one-sidedness of his rulings, including having to be twice overruled by the higher courts just in the preliminary stages of the case, an idea I put out as follows:
So it is not necessary to say that the decision was actually skewed. But then remember that bit about the cameras in the courtroom. And certainly read this indictment by Whelan of all the other misconduct he has engaged in. Normally we stop these inquiries merely at the recognition that the judge had an interest in the case, without asking whether his interest led him to bend the case in one direction or the other. But here we can see that the judge had a reason to favor the anti-Proposition 8 side of the case, and then actually favored them.
Okay, joking aside, truthfully it is very easy to believe that this is just a case of like-minded people thinking alike. For instance, that whole thing about a person not being a judge in his or her own case, is a legal cliché going all the way back to Dr. Bonham’s case in frickin 1610, which is the first use of judicial review in the common law tradition. In other words, it’s kind of a big deal.* And as for tying it into the judge’s biased behavior, I think bluntly they have been doing that all along. Before now they have never outright said that the judge’s sexuality makes him biased. Instead, they were just using the usual technique of presenting the facts and letting people make up their own minds. They didn’t actually say it, because then it would be too easy to claim that they were just anti-gay or something like that.
And even now they are careful not to say it is based simply on the fact he is gay. I have argued that in this case it is a problem even if he was not in a committed relationship, because the judge was ruling on whether he could ever marry anyone he was likely to fall in love with. But the plaintiffs are not taking that position, but the milder position that the long term relationship implies this concern. This is tactically sound, but it might not be the whole truth of how they feel.
At the very least the judge had a duty to disclose the nature of the relationship and yeah, literally nothing less than a promise that he had no intention of marrying his significant other would have dispelled the common sense notion that if you have been with someone for ten years (eight years when the case began), you are probably thinking of marrying him or her.
So they are moving to have the entire case vacated. That means the prior rulings would be rendered a dead letter and a new judge hears the case like as if the first one never even happened. One might question whether any of this will do a damned bit of good in the extraordinarily biased Ninth Circuit, but wholly apart from the tactical aspects of this issue, they are absolutely right. And the courts should grant this motion.
Here’s the full document, as promised:
* In case you are wondering, I have long considered Madison’s citation of the holding in Dr. Bonham’s case to be an implicit endorsement of judicial review.
[Posted and authored by Aaron Worthing.]