Proposition 8 Proponents Strike at the King and Go In For the Kill
[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.
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Here’s the full document, as promised:
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* 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.]
but gay marriage was legal in California and Judge Walker didn’t get married not even a little, and that suggests he wasn’t very interested in getting married, no?
btw those marriages are still for reals marriages as far as I know…
happyfeet (a55ba0) — 4/26/2011 @ 9:46 amhappy
> btw those marriages are still for reals marriages as far as I know…
the Cali supreme court ruled that the amendment was not retroactive, even though imho, it plainly was.
Aaron Worthing (e7d72e) — 4/26/2011 @ 9:52 ambtw those marriages are still for reals marriages as far I know.
Shut the front door.
DohBiden (15aa57) — 4/26/2011 @ 9:56 amThe motion is destined to fail.
For one thing, the same inferential arguments of bias — i.e., assertions of bias without actual evidence of it — could be asserted against a straight judge.
And secondly, as has been pointed out before, judges often rule on things which might — emphasize *might* — affect them in their personal lives. That, standing alone, is not, and has never been, cause for recusal.
Kman (5576bf) — 4/26/2011 @ 9:58 amDon’t these “protect marriage” people argue that gay marriage harms straight marriage? If so, wouldn’t a straight judge also have a conflict, as his straight marriage needs to be “protected” from the gays?
jasonc (059a24) — 4/26/2011 @ 10:01 amI agree and that goes double if he is a muslim.
Oh wait no it doesn’t?
DohBiden (15aa57) — 4/26/2011 @ 10:01 amjasonc, no. Because the ‘straight judge’ own personal status and rights would be unchanged.
SPQR (26be8b) — 4/26/2011 @ 10:02 amBut I heard that Judge Walker was only a little bit gay and even though he might not be interested in gay marriage himself many of his friends and social ties involve people who were a lot gay and that would never influence him one tiny bit, right?
Brett (df6549) — 4/26/2011 @ 10:03 amColor me SHOCKED, shocked I tell you, that kmart is being a contrarian and “jasonc” is flailing about at strawpeople.
JD (b98cae) — 4/26/2011 @ 10:05 am-jasonc, no. Because the ‘straight judge’ own personal status and rights would be unchanged.
But people who claim that gay marriage harms straight marriages wouldn’t believe that.
jasonc (059a24) — 4/26/2011 @ 10:05 amJudge Walker then ordered Prop 8 proponents to disclose private communications, work product, emails and campaign strategies to plaintiffs while – in an example of jaw-dropping inequality – permitting plaintiffs to keep the same materials secret.
http://townhall.com/columnists/mattbarber/2010/02/11/is_the_gay_fix_in_on_prop_8/page/full/
Brett (df6549) — 4/26/2011 @ 10:07 amRight, jasonc.
And… if nothing else… shouldn’t a straight judge be forced to demonstrate that he believes his own personal status and rights would be unchanged by gay marriage?
I mean, as long as we’re speculating about the bias of a gay judge, why can’t we speculate about the bias of his (straight) replacement?
Kman (5576bf) — 4/26/2011 @ 10:08 amjasonc, you are being intentionally dense. After a ruling, the straight judge’s own marriage would be unchanged, and his ability/right to get married would be unchanged. Not true for a gay judge.
SPQR (26be8b) — 4/26/2011 @ 10:09 amBecause that would be the pot calling the kettle black.
DohBiden (15aa57) — 4/26/2011 @ 10:09 amIf the new judge and/or the circuit court rejects the motion, can it be appealed to the CA State Supreme Court? To the U.S. Supreme Court?
aunursa (a2a019) — 4/26/2011 @ 10:10 amNews flash: plaintiffs and defendants aren’t on equal footing when it comes to discovery.
Kman (5576bf) — 4/26/2011 @ 10:10 amKman, there is not “right” about jasonc’s point. Nor yours. The actual status of straight marriages was not at issue in the case. No judgement in the case would allow straights to marry that couldn’t before, nor would ban straights from marrying that could before.
Your attempt to create a argument to the contrary is bizarre.
SPQR (26be8b) — 4/26/2011 @ 10:10 am“Jasonc” – then you should go address someone that is making the case about protecting marriage. But, as you kindly noted previously, you will not let facts get in the way of your narrative.
JD (d48c3b) — 4/26/2011 @ 10:11 amWell, *I* agree with that, but many Prop 8 proponents wouldn’t. They would argue that, by extending marriage to gay couples, you are changing the definition of “marriage” and that this affects them personally.
Kman (5576bf) — 4/26/2011 @ 10:13 amKman is making my brain numb with his logic.
DohBiden (15aa57) — 4/26/2011 @ 10:15 amKman
As usual, you haven’t even read what you are commenting on.
For instance you wrote this:
> And secondly, as has been pointed out before, judges often rule on things which might — emphasize *might* — affect them in their personal lives. That, standing alone, is not, and has never been, cause for recusal.
Amazingly you are apparently unaware of his duty to disclose despite the fact that it is written in black and white right in the comment and in the motion.
So the very fact they have to speculate, the fact they don’t know what the status of their relationship is, is a violation of the rules. The judge should not have left them speculating, but instead should have spelled it out. Or recused himself.
And the fact he didn’t becomes a cause to vacate the ruling where if he disclosed there might not have been.
By the way, remember when we argued about standing in the newdow case (involving the words “under God” in the pledge of allegiance)? You claimed he had standing. I said he didn’t. Who turned out to be right? Indeed, the S.C. vacated the ruling based on precisely the same argument I had.
You have a track record of not caring about procedural niceties and getting things hilariously wrong as a result. you would think you would have learned by now to shut up.
jasonc
here’s the answer to your question. https://patterico.com/2011/04/19/judge-walker-reaffirms-his-bias%E2%80%94twice/
Aaron Worthing (e7d72e) — 4/26/2011 @ 10:17 amKman ~ More evidence of Walker’s bias was when he tried to make the court proceedings televised to a worldwide audience. That move, though later overturned, caused the Prop 8 proponents to lose two-thirds of their expert witnesses who were afraid of the harassment that would certainly follow their testimony.
Brett (df6549) — 4/26/2011 @ 10:19 amLet’s say the judge was straight, but quite invested in anti gay marriage movements. Sure, that’s probably not the same level of investment a gay man has, but it’s enough for me to say he must recuse. Even if the judge is known to be fair and impartial in his performance, the appearance is a problem for a credible judicial branch.
Dustin (c16eca) — 4/26/2011 @ 10:21 amMachiavelli wrote “Never strike a prince unless you kill him.”
Wise words often forgotten, especially by our president.
Mike K (8f3f19) — 4/26/2011 @ 10:21 amKman, you are also being intentionally dense. By pretending that the word “status” has the same meaning between the two arguments. The “status” at issue in the case for gay marriage was whether or not they could be created. The argument about the affect on straight marriage was not that they couldn’t be created, but that they would lose social value.
Not equivalent and you know it. Quite a dishonest argument on your part. Ie., as usual.
SPQR (26be8b) — 4/26/2011 @ 10:23 amI’m constantly amazed by the patience of Patterico posters. Even though certain posters are known to argue in bad faith (knocking down strawmen, pretending that valid arguments against their positions were never made so they don’t have to answer them, moving the goal posts, and so on), the rest of Patterico’s regular readers continually point out the flaws in their logic. Not because they hope the trolls will change their minds or their posting habits (ha!), but because that way, any neutral reader coming across this argument for the first time will understand who’s arguing in good faith and who isn’t.
I wouldn’t have the patience for it myself, so I’m impressed by those who do.
Robin Munn (347954) — 4/26/2011 @ 10:25 amHe has a duty to disclose a conflict of interest. He doesn’t have a duty to disclose a LACK of a conflict of interest.
They don’t HAVE to speculate. They’re choosing to.
Besides, can’t ANY litigant… in ANY case… speculate that their judge has a bias that he’s not disclosing? Sure, they can. But that’s not the judge’s problem. He’s not required to refute baseless speculation that he might be biased.
You want to make an assumption that because his in some sort of “gay” relationship and that he “wants” to get married? Or at least, he wants to create the option of getting married? That’s fine. But procedurally, THE LAW is driven by assumptions.
Kman (5576bf) — 4/26/2011 @ 10:25 amKman – Like you, I think Judge Walker would argue he turned off his gayness during the trial so he could rule impartially.
The record seems to show otherwise.
daleyrocks (bf33e9) — 4/26/2011 @ 10:26 am-After a ruling, the straight judge’s own marriage would be unchanged, and his ability/right to get married would be unchanged.
I believe gay marriage will not affect straight marriage. I’m saying this is a problem for people who believe otherwise.
-you should go address someone that is making the case about protecting marriage.
I’m addressing the parties in this case. One of the groups in this lawsuit is called “protect marriage”
jasonc (be9572) — 4/26/2011 @ 10:26 amjasonc, your insistence on being obtuse is not among your more endearing troll traits.
SPQR (26be8b) — 4/26/2011 @ 10:28 am“He has a duty to disclose a perceived
conflict of interest.”
Kman – FTFY
daleyrocks (bf33e9) — 4/26/2011 @ 10:30 amThe protect marriage crowd does have an unfortunately ridiculous position, and the world would be a better place if they just changed their minds.
jasonc (be9572) — 4/26/2011 @ 10:30 amdaleyrocks:
i didn’t say that.
But it’s a revealing statement. You obviously think he can’t be impartial because he is gay, making a direct connection between the two.
Kman (5576bf) — 4/26/2011 @ 10:31 amIf the new judge and/or the circuit court rejects the motion, can it be appealed to the CA State Supreme Court? To the U.S. Supreme Court?
aunursa (a2a019) — 4/26/2011 @ 10:32 amPerceived? Or speculative? There’s a difference.
Kman (5576bf) — 4/26/2011 @ 10:33 am“i didn’t say that.
But it’s a revealing statement. You obviously think he can’t be impartial because he is gay, making a direct connection between the two.”
Kman – Nice try. It’s intended to actually get you to state what argument you are trying to make, since you have not actually advance one.
What is the argument you are making Kman?
daleyrocks (bf33e9) — 4/26/2011 @ 10:35 amAnd you think Clarence Thomas can’t be partial because he is a black conservative so there.
DohBiden (15aa57) — 4/26/2011 @ 10:35 amReferring to kturddiddley.
DohBiden (15aa57) — 4/26/2011 @ 10:37 amSee #4
Kman (5576bf) — 4/26/2011 @ 10:37 am“Perceived? Or speculative?”
Kman – I chose my words for a reason. Are you a moron or stupid?
daleyrocks (bf33e9) — 4/26/2011 @ 10:38 am“For one thing, the same inferential arguments of bias — i.e., assertions of bias without actual evidence of it — could be asserted against a straight judge.”
Kman – From #4 above, is not an argument against disclosure of perceived bias. It is a statement of fact. You lose.
What is your argument against disclosure?
daleyrocks (bf33e9) — 4/26/2011 @ 10:41 amjasonc, irrelevant.
SPQR (26be8b) — 4/26/2011 @ 10:43 amIt’s all based on guesswork, daley. Or as AW writes:
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.
Well, f*ck. The “for all we know” game can be played on any judge. Get a straight one in there, and what’s to stop me from arguing “For all we know, he could have contributed money to Prop 8 supporters”, and demanding that he disclose his finances.
It’s a game, a litigation tactic. Let’s not pretend it is anything else.
Kman (5576bf) — 4/26/2011 @ 10:43 amFrom what I see of the activists pushing for gay marriage, is that they have no respect for the rule of law, or the constitutional rights of others. Thus they are not advocates for civil rights, but people who demand that civil rights be violated at their whim. Were the judge in such a case, to have refused to have disclosed that he was a fundamentalist Christian, or who was a major contributor to the Prop 8 campaign, they would have been screaming bloody murder.
Just as the same activists, who demanded the law firm representing the House of Representatives in the DOMA case, dump the case, they would scream bloody murder, where they, be deprived of legal representation in a case, because the law firm they had contracted with, withdrew from representing them based on pressure from outside groups. What that informs us, is that they are liars and frauds, and not to be trusted.
jenny (090eb0) — 4/26/2011 @ 10:50 amCan a female judge rule on the constitutionality of an anti-choice law?
jasonc (8c2482) — 4/26/2011 @ 10:50 amCan a married, male judge rule on a law that requires wives to seek the permission of their husbands before getting an abortion?
-And you think Clarence Thomas can’t be partial because he is a black conservative so there.
Could he have ruled in Loving vs. Virginia?
jasonc (8c2482) — 4/26/2011 @ 10:52 am45.Can a female judge rule on the constitutionality of an anti-choice law?
Comment by jasonc
It depends on what the choice involves, and whether she could be personally affected.
aunursa (a2a019) — 4/26/2011 @ 10:53 amShould Scalia be compelled to disclose his Catholicism before every case dealing with homosexuality or pornography or church/state issues?
Kman (5576bf) — 4/26/2011 @ 10:54 am-It depends on what the choice involves, and whether she could be personally affected.
Would a female judge have to recuse herself if she got pregnant while presiding over a case on an anti-choice law?
jasonc (8c2482) — 4/26/2011 @ 10:56 am_______________________________________
The protect marriage crowd does have an unfortunately ridiculous position, and the world would be a better place if they just changed their minds.
Parts of Islam consider another alternative form of marriage, polygamy, to be perfectly fine. And in portions of Europe, off-shoots of fundamentalist Islam are inching their way through socio-political attitudes.
In all this, I laugh and snicker at liberal women in particular, certainly throughout the world of Hollywood, who become so incensed or resentful when they discover their husband, or even their boyfriend, is making out with another woman. Another variation of the two-faced dynamics of “limousine liberalism.”
My opinion of same-sex marriage has grown even more skeptical because of things like the following—and I re-post this in honor of happyfeet. IOW, if innate aspects of human behavior, sexuality included, are to be legally accommodated, then the innate tendency of most males to be polygamous needs to be accepted and legally accommodated too.
Mark (411533) — 4/26/2011 @ 10:58 amKman and jasonc keep listing other “examples” that are simply not of the same order.
The issue here was a case that had a judgment that directly affected the judge’s personal rights and choices. Listing other “examples” that do not is the kind of silly trolling that jasonc and Kman have made their hallmark.
SPQR (26be8b) — 4/26/2011 @ 11:04 amKman is making my skull throb.
DohBiden (15aa57) — 4/26/2011 @ 11:07 amHmm, I’m not convinced.
Do we have any evidence that Judge Walker indeed wanted to marry his male companion and have that marriage legally recognized? Or that he had “informally” married the man?
Obviously, gay people can get married anywhere in America. There is no ban on gay marriage. The issue is whether there is a constitutional requirement that states must recognize for legal purposes that marriage.
It seems to me that the concern is about a direct interest and not a general interest. After all, doesn’t just about every law affect a judge in some way, large or small?
SteveMG (840f0e) — 4/26/2011 @ 11:07 am-The issue here was a case that had a judgment that directly affected the judge’s personal rights and choices
I’m talking about laws the directly affect a woman’s rights and choices. In the husband example, I also hypothesized a law that gave the husband a right.
Can a judge who has a minor daughter rule on the constitutionality of a law that requires minors to get a parent’s permission before getting an abortion? If yes, should they recuse themselves if the daughter becomes pregnant?
jasonc (280b35) — 4/26/2011 @ 11:09 amWould a female judge have to recuse herself if she got pregnant while presiding over a case on an anti-choice law?
Comment by jasonc
It depends on what the choice involved, whether she personally wished or intended to make the prohibited choice, and whether she herself was a resident of the jurisdiction covered by the law.
aunursa (a2a019) — 4/26/2011 @ 11:10 am“The “for all we know” game can be played on any judge.”
Kman – That’s right. So for you to claim that your “argument” against Walker making disclosures of conflicts is based on what a straight judge not involved in the case would have to disclose is a completely ridiculous position.
I’ll make it simple for you. Based on the facts and the parties involved in the actual case, not hypothetical other cases, what is your argument against Walker making conflict of interest disclosures?
daleyrocks (bf33e9) — 4/26/2011 @ 11:10 amAnother moronic convergence. Jasonc only cares about his narrative.
How many names have you been banned under, “jasonc”?
JD (d48c3b) — 4/26/2011 @ 11:11 amCan a judge who has a minor daughter rule on the constitutionality of a law that requires minors to get a parent’s permission before getting an abortion? If yes, should they recuse themselves if the daughter becomes pregnant?
If the daughter is pregnant and the father wants to prohibit her from getting an abortion, then yes.
aunursa (a2a019) — 4/26/2011 @ 11:11 amI mean no, not yes.
aunursa (a2a019) — 4/26/2011 @ 11:12 amKman – Try to keep your answer germane.
daleyrocks (bf33e9) — 4/26/2011 @ 11:12 am-It depends on what the choice involved, whether she personally wished or intended to make the prohibited choice, and whether she herself was a resident of the jurisdiction covered by the law.
Oh of course I’m presuming she would be covered by the law. When, if ever, can a female judge rule on a law that limits a woman’s right to choose?
jasonc (280b35) — 4/26/2011 @ 11:14 amI don’t understand why you think they are “not of the same order”.
If a Catholic judge rules in favor of, say, homosexuality or pro-choice, it directly affects whether or not the judge gets into heaven — at least from the judge’s perspective, right?
Or let’s think about a case which involves whether or not a church can be taxed. Must all the judges in that case be atheists?
I mean, you want to pigeonhole this as to whether a case affects a judge’s “rights or choices”, but this is about bias. A judge can be biased even if his status or rights aren’t threatened.
Kman (5576bf) — 4/26/2011 @ 11:15 amShould Scalia be compelled to disclose his Catholicism before every case dealing with homosexuality or pornography or church/state issues?
To the same extent as Breyer should be compelled to disclose his Judaism.
aunursa (a2a019) — 4/26/2011 @ 11:15 amWhen, if ever, can a female judge rule on a law that limits a woman’s right to choose?
To choose what?
aunursa (a2a019) — 4/26/2011 @ 11:16 amDoes it matter what? Let’s make it even more generic:
When, if ever, can a female judge rule on a law that limits a woman’s rights.
jasonc (280b35) — 4/26/2011 @ 11:18 amWhen, if ever, can a female judge rule on a law that limits a woman’s right to choose?
Let’s say, for example, that the law limits a woman’s right to choose chocolate chip ice cream. If the judge personally wishes to choose chocolate chip, then yes, she should recuse herself.
aunursa (a2a019) — 4/26/2011 @ 11:19 amThe troll means a woman’s right to kill her baby because it might come out gay later in life.
DohBiden (15aa57) — 4/26/2011 @ 11:20 amIf she would like to eat chocolate chip ice cream, but is prohibited by the law, then she is personally affected and therefore should recuse herself.
aunursa (a2a019) — 4/26/2011 @ 11:21 amdaleyrocks:
I’m not against Walker making conflict of interest disclosures. Judges are supposed to disclose conflicts of interest.
But you want to talk “based on facts” and “not hypotheticals”? Then you tell me — what is the factual basis for a “conflict of interest”?
Let me put it another way. Suppose — as a thought experiment — that in reality, he had no conflict of interest. What exactly has he done wrong? What is he supposed to disclose?
Kman (5576bf) — 4/26/2011 @ 11:22 amKmart and “jasonc” are negaged in a LOOK BUNNIES!!!!! game. It is transparent, and pathetic.
JD (85b089) — 4/26/2011 @ 11:23 amOnly rightys can engage in conflict of interests.
We get it Kdiddleydoo.
DohBiden (15aa57) — 4/26/2011 @ 11:25 amSuppose — as a thought experiment — that in reality, he had no conflict of interest. What exactly has he done wrong? What is he supposed to disclose?
The law requires disclosure of any fact that could indicate the mere appearance of a conflict in interest.
aunursa (a2a019) — 4/26/2011 @ 11:25 amI’d say a pregnant woman who wants an abortion should recuse from a case regarding abortion rights. Or also a man who wants to stop his wife from aborting. He should recuse.
A man who is in a relationship with another man ruling that the constitution is unconstitutional so that gay marriage is legalized? Seems like an easy recusal call to me.
His behavior was erratic, and now the judiciary lost credibility. Perhaps they should exclude rulings on ballot initiatives from judicial scrutiny. The judiciary clearly is not capable of policing itself.
Dustin (c16eca) — 4/26/2011 @ 11:26 amI don’t mean to divert from aunursa’s point. Discloser of the mere appearance is what the law says. That law would be used against a conservative, but apparently some don’t think the law applies to radical leftists.
Dustin (c16eca) — 4/26/2011 @ 11:28 amComment by Kman — 4/26/2011 @ 11:15 am
This amazing bit of sophistry shows that you really don’t want to deal with the reality that Walker acted improperly. You know what the standards really are, and you intentionally avoid discussing them and their applicability to the case.
SPQR (26be8b) — 4/26/2011 @ 11:29 amOkay, so what needs to be disclosed that already hasn’t?
Kman (5576bf) — 4/26/2011 @ 11:31 am“I’m not against Walker making conflict of interest disclosures. Judges are supposed to disclose conflicts of interest.
Okay, so what needs to be disclosed that already hasn’t?”
Kman – Is the above your final answer?
daleyrocks (bf33e9) — 4/26/2011 @ 11:33 am-I’d say a pregnant woman who wants an abortion should recuse from a case regarding abortion rights. Or also a man who wants to stop his wife from aborting. He should recuse.
What if she has the abortion, should she still recuse herself after that? What if the wife has the abortion, should the judge still recuse himself?
jasonc (62e777) — 4/26/2011 @ 11:35 am_____________________________________
Walker had damn well admit that his homosexuality, or bisexuality, should be factored into his presiding over Proposition 8. After all, homosexuals are a subset of the general public, and if Walker is 100% gay (and not even slightly bisexual), then he’s in an even smaller subset of that subset.
This is analogous to most judges throughout America (given their annual income) undoubtedly being investors in various stocks, but a particular judge owning shares in the XYZ Corp. And that judge, in turn, being asked to oversee a case that involves the XYZ Corporation.
Mark (411533) — 4/26/2011 @ 11:35 amthe Cali supreme court ruled that the amendment was not retroactive, even though imho, it plainly was.
The plain language didn’t mention retroactivity. That said, the plain language is an absolute bar, which should apply retroactively.
On the other hand, simply declaring that it didn’t apply retroactively prevented a legal and financial nightmare for those couples who had been married and now weren’t; as a practical matter, not applying it to them was the best decision.
[Note that, while I opposed Prop. 8 vehemently, I basically agreed with the entire decision affirming the (state) constitutionality of Prop 8; the legal arguments put forward by my fellow opponents in that case were simply absurd].
aphrael (e0cdc9) — 4/26/2011 @ 11:36 amKman – Again, you are not presenting an argument. You are asking others to do it so you can argue against them.
Please present an affirmative argument that Judge Walker has no conflicts of interest to disclose. Can you do it?
daleyrocks (bf33e9) — 4/26/2011 @ 11:36 amPerhaps they should exclude rulings on ballot initiatives from judicial scrutiny.
I understand the motive, but that’s a terrible idea, because … who would interpret such ballot measures in that case? I mean, it’s not as if the wording of the things are usually clear (Prop. 8 was a tremendous exception to that), and they’re often not written by lawyers …
aphrael (e0cdc9) — 4/26/2011 @ 11:37 amJason would love china where they force abortions on people.
DohBiden (15aa57) — 4/26/2011 @ 11:38 amI have one question for those who believe that the ruling should not be vacated.
Let us suppose, for the sake of argument, that persons in a polygamous union apply for a marriage license in Oklahoma, and are denied a license by a district court clerk. They file suit in federal court, alleging that Article I, Section 2 and Article 2, Section 35 of the Oklahoma Constitution violate the U.S. Constitution and asking for a writ of mandamus to compel the district court clerk to issue the marriage license. The judge in the case denies the plaintiffs’ claims, citing Reynolds v. the United States, 98 U.S. 145 (1878), and Davis v. Beason , 133 U.S. 333 (1890) as binding precedent compelling denial of the plaintiffs’ claims. Six months after the district court judgment, it is revealed that the judge was married to one of the legislative sponsors of Oklahoma’s Question 711, the ballot question that placed Article 2, Section 35 into the state constitution. Would the judge in that case have had a duty to disclose, if not recuse?
If the answer is “no”, then there is no further ground for discussion.
Which none of the parties could have considered because Judge Walker did not disclose the relationship.
For another example, let us assume that a school board for sued for sex discrimination, on the basis that a music program in one of its schools discriminates against girls on the basis of sex, and the case ends up before a judge who has a daughter attending the school and did not apply to the music program. The judge could disclose all the relevant facts, and the parties either waive recusal, or the judge denies a motion for recusal on the basis that the daughter had no involvement in the music program, and in this situation the parties had enough information to make an informed judgment. Or the judge can refuse to disclose that fact, which the parties learn nine months after the entry of judgment, and thus requiring vacatur under the Supreme Court’s precedent in Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847 (1988), because the parties to the case did not have enough information to make an informed judgment on whether to seek recusal.
You are completely missing the point, which is that Walker’s long term relationship put him in a position to directly and immediately benefit from his own ruling.
Wrong.
He had a duty to disclose.
In msot cases, yes, as she would only be ruling on the rights and duties of the plaintiffs and defendants with respect to each other.
If her lived in a state lacking anti-miscegenation laws, yes.
Yes and yes.
If the relief being sought would not benefit her or her immediate family. A female judge can certainly rule impartially on a sex discrimination suit against a public school, unless her daughter attends the school.
So many people keep missing the point by a light year. Just click here for one example.
Michael Ejercito (64388b) — 4/26/2011 @ 11:40 amNot necessarily.
If the Prop 8 case had been transferred to the District of Nevada, the judge there could be a man in a relationship with another man and still rule impartially, as the conflict of interest would not be present.
Michael Ejercito (64388b) — 4/26/2011 @ 11:43 amOf course it is.
It’s less terrible than letting corruption seep in. Frankly, I just think we should have had someone who obeyed the law rule on Prop 8. But we can’t have that apparently, so we shouldn’t burden the honest with a law the dishonest don’t obey.
Yes, Aphrael of course is right that these ballot measures often are quite difficult to work with after they pass. That is not as big a problem as a lawless judiciary, which is exactly what we have right now. The judiciary has lost my faith, and we should simply trim its jurisdiction down as much as possible. Alternatively, we could put judges in prison when they behave like Walker did.
BTW, this has nothing to do with the merit of gay marriage to me. We could just pretend Walker was a straight man who impregnated a wife before ruling that abortion was unconstitutional. He claims he didn’t really care, but he hid an appearance of bias.
Dustin (c16eca) — 4/26/2011 @ 11:44 amKman
> He has a duty to disclose a conflict of interest.
Proving your incompetence in the profession, again.
First, the term is not “conflict of interest.” That presumes that one duty pulls one way and his interests pull in the opposite direction. Since you believe that gay marriage is constitutionally protected, according to your logic there is no conflict between following the law and his interest. Duh.
The correct term is “interest in the outcome.” or something synonymous with that term.
Second, it is not merely when he has an interest in the outcome but ANY circumstances where his impartiality might reasonably be questioned. that is 28 U.S.C. § 455 (a). Then it enumerates certain specific situations under (b). Subsection A conflicts can be waived but only after disclosure. Subsection B are non-wavable conflicts.
Now I know you believe we are being unreasonable, but just try this. Go to ten people on the street and say, “hey, you know that judge who ruled that gay marriage is in the constitution. Yeah, he is gay and has been in a relationship with another man for ten years. Do you think that might have influenced his decision?” We all know what the answer to that question will be, most of the time.
You would know that if you read the post, but you don’t bother.
> They don’t HAVE to speculate. They’re choosing to.
In which you blame the victim for fighting back…
Aaron Worthing (e7d72e) — 4/26/2011 @ 11:45 amWow, good point, Ejercito.
Dustin (c16eca) — 4/26/2011 @ 11:45 am-If the Prop 8 case had been transferred to the District of Nevada, the judge there could be a man in a relationship with another man and still rule impartially, as the conflict of interest would not be present.
But this goes both ways: Judge walker can also go get gay married in another state, so his rights aren’t threatened here.
jasonc (533ab8) — 4/26/2011 @ 11:47 amKman
And i forgot this bit:
> You want to make an assumption that because his in some sort of “gay” relationship and that he “wants” to get married?
the reason why it is reasonable to believe he wants to get married is because he is in a long term relationship. any romantic relationship lasting at least 8 years brings up the inference that a person might want to get married to that person, straight or gay.
Aaron Worthing (e7d72e) — 4/26/2011 @ 11:50 amJack Marshall also agrees with this.
In my comment, I pointed out
But his out of state marriage would not be recognized as such in California.
Michael Ejercito (64388b) — 4/26/2011 @ 11:51 amHahaha. The burden isn’t on me; it’s on the ones making the motion.
Again, if it were a straight judge ruling in favor of Prop 8, maybe I could just make up a motion ASSUMING he has some conflict of interest, and demanding he either (a) recuse or (b) fess up his conflict.
It’s a nice legal tactic, but not one that’s going to work.
Michael Ejercito:
Well, I don’t think Walker was under any delusion that his opinion wasn’t going to languish in the courts for a while.
But your comment stems from a supposition that Walker, personally, wanted to benefit from his ruling. In fact, it makes the supposition that Walker, for himself, views marriage as a benefit.
On what is that based?
Suppose Walker has absolutely no interest in marrying his so-called partner. Suppose he has no interest in marriage, period, which — believe it or not — is a pretty common stance in the gay community. What was he supposed to disclose? A non-existent bias?
Kman (5576bf) — 4/26/2011 @ 11:51 amI don’t assume that he “wants” to get married. I assume that if he’s gay, a case that rules on the availability of marriage to gay people changes his own personal rights.
Sheesh. They can’t address the actual arguments so they have to create more complicated versions of the argument to give themselves strawmen.
SPQR (26be8b) — 4/26/2011 @ 11:52 amKman, and you are still not applying the actual standards.
SPQR (26be8b) — 4/26/2011 @ 11:53 am“Hahaha. The burden isn’t on me; it’s on the ones making the motion.”
Kman – HaHaHaHa. And you have advanced no serious argument against the argument presented using the facts and circumstances of the case, proving once again you are an unprincipled twatwaffle of a troll.
daleyrocks (bf33e9) — 4/26/2011 @ 11:55 amKman
> conflict of interest
Again, the correct word is not “conflict of interest.” Its just plain “interest in the outcome.”
> maybe I could just make up a motion ASSUMING
We aren’t making up the fact he has been in this relationship for 10 years.
> Well, I don’t think Walker was under any delusion that his opinion wasn’t going to languish in the courts for a while.
Then why didn’t he grant a stay of his ruling pending appeal?
> In fact, it makes the supposition that Walker, for himself, views marriage as a benefit.
> On what is that based?
His own words. His opinion goes on and on a while asserting that there were many benefits to marriage, something you yourself commented on the last time we tangled on this. Or are you forgetting all the bullshit you are spinning?
Aaron Worthing (e7d72e) — 4/26/2011 @ 11:58 amGay marriage advocates can likewise argue that a straight judge who is in a relationship is also biased.
JEA (4ddf0a) — 4/26/2011 @ 11:58 am-I assume that if he’s gay, a case that rules on the availability of marriage to gay people changes his own personal rights.
This is what people don’t seem to be getting at with the abortion examples though. Comments so far have only said only women who are pregnant and want abortions should be recused.
jasonc (c23404) — 4/26/2011 @ 11:59 amThe chevrolet volt is safe?
I guess it’s as safe as Kdiddleydoo sniffing glue.
DohBiden (15aa57) — 4/26/2011 @ 11:59 amAW:
And the fact that he didn’t get married when he had the chance brings up the inference that he has no interest in marriage and/or that perhaps the relationship isn’t as serious as you speculate.
Kman (5576bf) — 4/26/2011 @ 12:00 pmHe wasn’t speaking for himself PERSONALLY. He wasn’t expressing how HE personally viewed marriage as something for HIS OWN life.
Kman (5576bf) — 4/26/2011 @ 12:03 pmSorry… got the speakers wrong there. but you get my gist.
Kman (5576bf) — 4/26/2011 @ 12:05 pmThat was proven by the fact that he had issued a broad injunction purpoting to bind all state officials (instead of just the defendant county clerks) from enforcing Proposition 8 with respect to anyone (instead of just the plaintiffs), and the fact that he refused to stay his ruling.
He was supposed to disclose his relationship.
He should have disclosed the relationship to the parties.
Michael Ejercito (64388b) — 4/26/2011 @ 12:05 pmKman
First, notice you ignore my serial corrections on your ignorance of law.
Second, you write:
> And the fact that he didn’t get married when he had the chance brings up the inference that he has no interest in marriage
Forever? Never ever?
And I am sorry, but you can’t defeat Section 455(a) conflicts by speculating what the disclosure might have been if he made it. The fact is he didn’t tell us he had been in a 8 year (by then) relationship. The fact is he didn’t disclose whether he had any desire to marry his partner. That alone warrants recusal.
Aaron Worthing (e7d72e) — 4/26/2011 @ 12:06 pmKman
> He wasn’t expressing how HE personally viewed marriage[.]
So he found as a matter of fact that marriage had financial and health benefits, but he didn’t personally believe it?
I think bluntly you are confusing whether he wanted that benefit with whether he considered it a benefit. Like justice scalia might recognize that there are financial benefits to being in private practice, especially now. he would get seven figures, assuredly. But he chooses not to for whatever reason.
Aaron Worthing (e7d72e) — 4/26/2011 @ 12:08 pmThat’s your “proof” that Walker intended to benefit from his own ruling?
Isn’t it possible that he enjoined enforcement of Prop 8 because it was unconstitutional, and it had nothing to do with his personal plans?
Kman (5576bf) — 4/26/2011 @ 12:09 pmAre kmart and “jasonc” still savaging those strawpeople?
JD (d56362) — 4/26/2011 @ 12:12 pmYes, Aphrael of course is right that these ballot measures often are quite difficult to work with after they pass. That is not as big a problem as a lawless judiciary, which is exactly what we have right now
IIRC, you don’t live in a state with ballot initiatives on the scale of California. Not allowing judicial interpretation of such initiatives would be nothing short of a catastrophe. The cure would, in this case, be far worse than the disease.
aphrael (e0cdc9) — 4/26/2011 @ 12:16 pmAW:
And you can’t win Section 455(a) by speculating what the disclosure might have been if he had made it.
It hasn’t occurred to you that the reason he didn’t disclose those things is because neither one is true?
Again, you are speculating that this was some sort of close relationship, as well as speculating that he actually HAD a desire to marry his partner. Believe it or not, among elderly gays, marriage isn’t on the radar because it HASN’T been a possibility for so long.
Kman (5576bf) — 4/26/2011 @ 12:17 pmjasonc
btw, you missed the warning on comments. no proxies. banned.
Aaron Worthing (e7d72e) — 4/26/2011 @ 12:17 pmThe fact is plaintiffs lacked standing to enjoin all enforcement of Proposition 8, because they had no particularized legal interest in the marriage rights of others (like Judge Walker). See Doran v. Salem Inn,
Inc., 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) 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)
Yes.
Michael Ejercito (64388b) — 4/26/2011 @ 12:20 pmKman
> And you can’t win Section 455(a) by speculating what the disclosure might have been if he had made it.
I don’t have to speculate. He is supposed to remove all speculation by DISCLOSURE.
> It hasn’t occurred to you that the reason he didn’t disclose those things is because neither one is true?
Reuters said he disclosed a 10 year (by now) relationship. If the judge disputes that they can surely have an evidentiary hearing on the matter.
And we know he made not disclosures at all about that relationship until after the trial was over.
> Again, you are speculating that this was some sort of close relationship
No, I am pointing out that the mere length of time gives rise to reasonable questions as to his impartiality. You know like the law talks about. That pesky “law” thing you keep ignoring.
[edited after the fact. –Aaron]
Aaron Worthing (e7d72e) — 4/26/2011 @ 12:22 pmThe lack of disclosure itself is grounds for vacatur, because the parties could not know enough facts on whether to waive recusal.
For another example, let us assume that a school board for sued for sex discrimination, on the basis that a music program in one of its schools discriminates against girls on the basis of sex, and the case ends up before a judge who has a daughter attending the school and did not apply to the music program. The judge could disclose all the relevant facts, and the parties either waive recusal, or the judge denies a motion for recusal on the basis that the daughter had no involvement in the music program, and in this situation the parties had enough information to make an informed judgment. Or the judge can refuse to disclose that fact, which the parties learn nine months after the entry of judgment, and thus requiring vacatur under the Supreme Court’s precedent in Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847 (1988), because the parties to the case did not have enough information to make an informed judgment on whether to seek recusal.
Michael Ejercito (64388b) — 4/26/2011 @ 12:23 pmThe problem with the motion is summed up from these words (in the motion itself)
Now, I don’t know of any law that requires a judge to provide disclosures of non-bias. Yet, that is what plaintiffs are insisting Judge Walker should have done. They’re flat out wrong.
Kman (5576bf) — 4/26/2011 @ 12:25 pm“IIRC, you don’t live in a state with ballot initiatives on the scale of California. Not allowing judicial interpretation of such initiatives would be nothing short of a catastrophe. The cure would, in this case, be far worse than the disease.”
You do recall right. however, I find a lawless judiciary invested in politics in California to be a problem for the entire country.
Perhaps a compromise could be reached. While I don’t trust Walker to merely interpret a law any more than I trust him to rule whether it may exist, we could simply remove from federal jurisdiction the question of constitutionality.
In other words, if there is a need to interpret these measures into a working system, fine, but as far as ruling a ballot measure unconstitutional goes, the judges do not get a say.
And what’s so bad about that? Obviously, the notion of tyranny of the majority is the problem. But that’s not as bad as the tyranny of a judge who displaces the rest of the government and fails to follow the law himself. That’s approaching despotism.
The option of an unbiased judiciary doesn’t exist, so we have to choose which tyrant to live under, and I say we then resort to majority rule.
Dustin (c16eca) — 4/26/2011 @ 12:27 pmAW:
Based on what statute? Tell me the law that I keep “ignoring” wherein he is supposed remove speculation (which didn’t exist at the time) by stating his unequivocal lack of bias.
Yeah, but “relationship” is kind of a vague word, isn’t it?
Kman (5576bf) — 4/26/2011 @ 12:29 pmSection 455(a) of Title 28 of the United States Code requires that a federal judge must disqualify himself “in any proceeding in which his impartiality might reasonably be questioned.”
Michael Ejercito (64388b) — 4/26/2011 @ 12:33 pmHe sounded a lot like Brett Kimberlin fanboy IMDW. His style was just that same special mix of obnoxiousness and ignoring any point he couldn’t respond to, while making douchey complaints that were not relevant. It seems more likely now that I learn he was hiding behind a proxy.
Say what you will about Kman, who apparently is not knowledgeable about the legal system, and often argues in an incoherent or unproductive manner, but at least he isn’t switching from one handle to the next, and one IP to the next.
It’s often unclear if Kman even realizes he’s losing an argument. I don’t think he follows the conversation very closely, or understands a lot of the laws he attempts to interpret. imdw, on the other hand, actually knows he lost the argument because he flees and returns by another name.
Dustin (c16eca) — 4/26/2011 @ 12:35 pmKman
> Tell me the law that I keep “ignoring” wherein he is supposed remove speculation (which didn’t exist at the time) by stating his unequivocal lack of bias.
Scroll up, jackass.
> Yeah, but “relationship” is kind of a vague word, isn’t it?
Well, they don’t mean they were just business partners.
Dustin
> Say what you will about Kman, who apparently is not knowledgeable about the legal system, and often argues in an incoherent or unproductive manner, but at least he isn’t switching from one handle to the next, and one IP to the next.
Well, unless you count blogging under his real name and appearing here as Kman.
Aaron Worthing (e7d72e) — 4/26/2011 @ 12:38 pmDo California’s civil unions confer each and every right that marriage does? Google isn’t helping me here. Do civilly-united gay folks in Cali have all rights that married folks have?
carlitos (c2a84d) — 4/26/2011 @ 12:45 pmAaron, please, you’re being unfair to Jackasses to make such an accusation, for they do provide a valuable contribution to the reduction of manual labor, unlike the actions of your verbal opponent.
AD-RtR/OS! (b8ab92) — 4/26/2011 @ 12:47 pmYes.
Michael Ejercito (64388b) — 4/26/2011 @ 12:47 pmFrankly, Aaron, you seem to vaguely support the notion that Kman practice law. That’s his profession. Can you imagine how stupid it would be for a lawyer to associate his professional reputation with Kman’s commentary? He can’t even get legal terms approximately correct. He can’t tell whether he’s reading the Iowa constitution or the US constitution. He doesn’t understand what the word “appearance” means.
I totally understand Kman’s shame. Yes, it’s still douchey, if we accept the idea that Kman actually argues the opposite point here from his own blog. That shows he’s a liar, and perhaps shows his inability to get the facts or law straight here is actually knowing and obnoxious contrariness, which combined with his decade of stalking you is quite disturbing.
But it contrasts well against the guy who loses an argument only to come back another day with a new name because he trashed the last 50 personas. That’s just sad.
Dustin (c16eca) — 4/26/2011 @ 12:47 pmAD
> Aaron, please, you’re being unfair to Jackasses to make such an accusation
I wasn’t accusing him of anything. I was stating a fact.
Aaron Worthing (e7d72e) — 4/26/2011 @ 12:53 pmMichael Ejercito, while you were posting, I found the “9 differences” in the “In Re Marriage” case here –
http://en.wikipedia.org/wiki/Domestic_partnership_in_California#Differences_from_marriage
Are those different from civil unions, because they only differ within a domestic partnership? Do civil unions get you into CalPERS, and do they have the residency and age requirements that marriages don’t have?
carlitos (c2a84d) — 4/26/2011 @ 12:54 pmcarl
well, michael might be basing his assessment on what the court said in the marriage cases. there they said that it was equal in every tangible way, but only different in intangible ways–echoing the logic of brown v. board of education.
Aaron Worthing (e7d72e) — 4/26/2011 @ 12:57 pmPeople like Walker are the reason I have no respect whatsoever for the law…I only have respect for the power of the state, and what they’ll do to me if I defy them.
Dave Surls (92f486) — 4/26/2011 @ 1:01 pmThe bottom line for Kman is one of two things, neither of which paints a favorable picture.
1. He is aware of the recusal law but simply believes that Walker’s impartiality could not “reasonably be questioned,” no matter how directly Walker’s decision stood to benefit Walker personally.
2. He is not aware of the recusal law.
Mind you, I have no illusions: The District Court (before which the Motion To Vacate has been filed) will deny vacatur on ground #1, as will the Ninth Circuit. Doesn’t mean they’re right.
Mitch (890cbf) — 4/26/2011 @ 1:09 pmI’d say that pensions, residency, age, lack of confidential option, differing unemployment benefits and the others seem tangible (if that’s true under civil unions).
But you’re right, the court in In Re Marriage Cases likened this case to Brown, saying that it would be like calling mixed race marriages “trans-racial marriages,” while granting the same rights. (according to wiki, whose source note leads to a bad page)
But I was lambasted here last time I mentioned Brown and this case.
carlitos (c2a84d) — 4/26/2011 @ 1:12 pmmitch
you missed option #3: kman understands recusal law and is lying about everything because he really, really wants gay marriage to win the day.
and while you will never go broke betting against the integrity of the 9th circuit, i do think this will be a bit much for them to swallow. and even if they uphold this, if the S.C. gets ahold of it, it will be vacated.
Aaron Worthing (e7d72e) — 4/26/2011 @ 1:14 pmcarl
well, i meant to say, but didn’t, that the court might have been declaring it tangibly equal as a ploy, frankly much as they did in brown. now in that case, it was the lawyers doing so, but they stipulated that ms. brown’s school was equal in every tangible way to the white schools she wanted to attend. that was almost certainly untrue, but thurgood marshall and company wanted a ruling that applied in every jurisdiction, by saying separate could never be equal.
Aaron Worthing (e7d72e) — 4/26/2011 @ 1:21 pmAW:
Yeah, I knew you couldn’t quote from the statute.
You know why?
Because there’s no such language.
I think your problem is that you have concluded that he is biased (because how could any person find Prop 8 to be unconstitutional?!?), and are working backwards to see him recused on the basis that he failed to disclose his bias.
Except… what if he wasn’t biased? What if he actually believed that Prop 8 was unconstitutional for the reasons he stated in his opinion, and it had nothing to do with any “relationship” or prospective marriage? Why is that so hard to believe?
Kman (5576bf) — 4/26/2011 @ 1:30 pmhahaha
Oh man, this is too funny. Kman pretends Aaron argues in bad faith.
That’s not relevant. Please read the law. He has to disclose the appearance of interest in the outcome. Whether Kman guesses he’s biased or not is a completely different question of no relevance.
You have been corrected on this at least ten times in this thread.
Dustin (c16eca) — 4/26/2011 @ 1:35 pmAnd I have this authoritative interpretation from Strauss v. Horton, which was decided after Marriage Cases. Proposition 8 left “undisturbed all of the other extremely significant substantive aspects of a same-sex couple’s state constitutional right to establish an officially-recognized and protected family relationship and the guarantee of equal protection of the law.” 46 Cal 4th 364 (2009)
This alone should have been enough to immunize it from an equal protection challenge.
Indeed, the Ninth Circuit did issue an extraordinary writ to stop the discovery authorized by Judge Walker.
I do not know if a Supreme Court ruling might have any practical effect. They might choose to decide the case simultaneously with Gill v. Office of Personnel Management, In Re Marriage of J.B. and J.B., and possibly other cases. Which means that, if they vacate the Perry decision and strike down DOMA and/or Texas’s Proposition 2 as a violation of due process and/or equal protection, the case simply goes back to the district court which would quickly issue a one-page summary judgment ruling in favor of plaintiffs.
Michael Ejercito (64388b) — 4/26/2011 @ 1:39 pmIt does not matter. He was required to disclose his relationship.
For another example, let us consider a judge hearing a sex discrimination case against a school, whose daughter attends that school and she fails to disclose that fact to the parties. Even if her decision was completely correct as a matter of law, the failure to disclose would require vacatur of the decision.
Michael Ejercito (64388b) — 4/26/2011 @ 1:42 pmWalker hasn’t satisfied the appearance of justice.
Such as having a homosexual boyfriend for ten years within a jurisdiction that just barred a version of a homosexual relationship.
Such as that homosexual boyfriend.
—
Let’s note for a moment that Kman has stacked the deck backwards. It’s not up to anyone to prove bias. Anyone reading the law can see that is plain. It’s up to the judge to recuse if there is any reasonable question. Obviously granting oneself and one’s long term lover a new civil right produces a reason to question partiality. Done. Game over. That’s why he didn’t disclose the relationship.
Kman flips this backwards and demands we show where the judge has to remove speculation, and thus it’s clear he is either amazingly ignorant of a law he’s been arguing about for hours, or, as Aaron said, dishonestly playing sophist because of Kman’s wish to see gay marriage.
If it’s the latter, that is seriously stupid. If you believe in gay marriage, you should want that to happen in a way that satisfies the appearance of justice. Any short cuts are not helpful in the long term.
Dustin (c16eca) — 4/26/2011 @ 1:44 pm.
Exactly how many times do they have to provide information for you until you quit your little act where you pretend that they did not do so?
JD (0d3598) — 4/26/2011 @ 1:45 pmKman
> Yeah, I knew you couldn’t quote from the statute.
1) you didn’t ask me to quote from the statute. You wrote:
> Tell me the law that I keep “ignoring”
2) You knew nothing. You asked me to repeat myself and i refuse to.
> and are working backwards
No, you are the one who starts with the result and works backwards from it. But its interesting that you assume I am that way.
My logic is just what I always said in my first post. It is hard to be unbiased when you are ruling on whether or not you should be married to either 1) the person you presently love or 2) anyone you ever might fall in love with.
> Except… what if he wasn’t biased? What if he actually believed that Prop 8 was unconstitutional for the reasons he stated in his opinion, and it had nothing to do with any “relationship” or prospective marriage? Why is that so hard to believe?
That whole passage proves YOU HAVE NO IDEA WHAT THE LAW OF BIAS AND RECUSAL IS ABOUT. Read the fraking statute. Do you understand the difference between subjective and objective standards? That statute presents an OBJECTIVE standard for recusal. Because we will never know if Vaughn Walker honestly believed the bull he was throwing. I mean it strains credibility when he is 1) breaking the rules to get the trial on TV, 2) breaking the rules when allowing for invasive discovery, 3) intentionally misrepresenting the statements of trial counsel, 4) breaking his own orders in airing trial video, and on and on. I think this judge was corrupt as crap and now the chickens are coming home to roost, but neither one of us can know it.
Which is, thank God, why the law doesn’t ask if the judge SUBJECTIVELY believes he can be unbiased, but whether a reasonable person would question his impartiality, an OBJECTIVE standard. Because if we went with the SUBJECTIVE standard you ignorantly advocate, we would never disqualify any judge ever. They’d almost always claim they could be fair–and how could we prove them wrong?
So dishonest or incompetent in your profession. You tell me.
Aaron Worthing (e7d72e) — 4/26/2011 @ 1:48 pmCarlitos – the basic law in California is that a domestic partnership is equivalent to Marriage in any respect where it isn’t explicitly called out as different. (There is no such thing as a ‘civil union’ in California). That was the explicit intent of the last legislative revision to the domestic partnership statute.
There are gray areas where it’s unclear. But after the Supreme Court decision interpreting Prop 8 – which said that Prop 8 merely revoked the name marriage and none of the substantive rights other than the name, any gray area must be resolved in favor of treating the domestic partnership as equivalent to marriage. Our courts hold that the (state) Constitution requires this.
So: the legislature has commanded equivalence, and the courts say the Constitution commands equivalence, and the executive refused to defend Prop 8 in court. All three branches of California government agree on the point that domestic partnerships entitle couples to all the rights and responsibilities of marriage, except for the name.
aphrael (e0cdc9) — 4/26/2011 @ 1:51 pmThat’s quite different. You’re talking about a connection between the judge and a party to the case.
Kman (5576bf) — 4/26/2011 @ 1:53 pmI’d say that pensions, residency, age, lack of confidential option, differing unemployment benefits and the others seem tangible (if that’s true under civil unions).
(1) the lack of confidential option does not refer to the spousal evidentiary privilege, but to the ability of a couple to get married and keep the marriage secret. My impression is that in Re Marriage Cases combined with Strauss v Horton requires that domestic partnerships be granted this right; however, the statute doesn’t say so, and it hasn’t been litigated, because how often does someone want to get married and keep the marriage secret?
(2) the pension exclusion is interesting. I don’t know enough about pension law to do anything more than wildly speculate, but since the feds heavily regulate pensions, this may be a result of federal law.
The unemployment, age, and residency differences are contraverted by in re Marriage Cases and Strauss v Horton and will not stand if anyone challenges them in court.
aphrael (e0cdc9) — 4/26/2011 @ 1:54 pm“What if he actually believed that Prop 8 was unconstitutional…”
LOL.
It’s no more unconstitutrional than laws banning polygamy.
Liberals and homosexuals just don’t like the idea, that’s all.
Has nothing to do with the law, only to do with their personal whims.
Dave Surls (92f486) — 4/26/2011 @ 1:55 pmIt seems to me that under this theory, no judge is sufficiently unbiased to hear a claim challenging the constitution of the individual mandate.
aphrael (e0cdc9) — 4/26/2011 @ 1:55 pmAphrael – do you think he should have disclosed?
JD (0d3598) — 4/26/2011 @ 1:59 pmaph
well, when every judge has a stake in the case, you say f— it and pick the least biased judge. I addressed that in my last post on this subject with the example of a constitutional challenge to judicial wages.
Aaron Worthing (e7d72e) — 4/26/2011 @ 2:01 pmeh, I think there needs to be a reasonable question about propriety. A gay man in California, or a gay man in a long term relationship in California, is a lot different from anyone at all.
It’s more to me like a lawsuit alleging abortion is unconstitutional (deprives life without due process), and the judge having a pregnant pro choice girlfriend.
When I read the word “reasonably”, I try to interpret that as “do you have a reason to”. Can someone reasonably question whether a gay man in a long term relationship in California is partial to the outcome of this case?
Dustin (c16eca) — 4/26/2011 @ 2:02 pm“no judge is sufficiently unbiased to hear a claim challenging the constitution of the individual mandate.”
True story.
That’s one good reason why it ought to be left up to a vote of the people.
Dave Surls (92f486) — 4/26/2011 @ 2:06 pmFortunately this theory is not in use.
If a female judge hears a sex discrimination claim against a school; her sex is insufficient grounds for recusal.
If her daughter attends the school, she must disclose and might have to recuse herself.
Michael Ejercito (64388b) — 4/26/2011 @ 2:06 pmI’d think that flipping off the Nutso 9th by playing his “sealed” recordings might have been a dig too far for the judge. And good riddance. Guy was obviously biased, from day one.
Bigfoot (8096f2) — 4/26/2011 @ 2:07 pmAgreed.
How can anyone defend his conduct (apart from the ruling)?
Michael Ejercito (64388b) — 4/26/2011 @ 2:14 pmI have no problem with a gay judge not recusing himself, nor do I have a problem with a gay judge not disclosing his being gay or being in a committed 10-20 year relationship.
That being said, Walker clearly should have recused himself. His behavior should him to be extremely biased. Starting with the rulings on the videoing the proceedings, the one sided discovery issues, and the opinion in the case whereby he omitted factual findings which supported the banning of ssm.
I would also like to point out that I am not opposed to gay marriage (not in favor of it either) though do like the idea of civil unions.
That being said, my major opposition to SSM is in the area of adoption. Contrary to the “findings of fact” in the opinion, it is nearly impossible to believe the studies that show children raised by gay couples grew up as normal as any other child. It is nearly impossible that the child raised by a gay couple does not develop some form of warped perspective on normal biological relationships. Those of you who wish to respond to my comment, please omit any reference to my thought being those of a homophob – instead consider how a child raised by a gay couple would not develop some form of warpness.
Joe - Dallas (7416ca) — 4/26/2011 @ 2:17 pmI’m asking you for that statute that requires a judge to disclose information showing that he doesn’t have a bias. You can hem and haw all you like, but it ain’t in any statute mentioned in this post or the brief (28 USC 455)
Who said they were in LOVE? Maybe they’re just committed f**kbuddies. I don’t know. Do you?
Secondly, what makes you think it is so hard to be unbiased? I can do it. So can you. I despise Rev Terry Jones and his Koran-burning. But I can admit that he’s protected by the First Amendment. I’m sure you can think of many examples that fit yourself.
No, I get that it is a reasonable person standard. Not an “objective” standard for recusal based on the subjective speculation by you and the conservative right and the Prop 8 proponents that he must be impartial since he’s so corrupt.
A reasonable person knows what speculation is. They know that the notion that Judge Walker wants to marry his partner is speculation. They know that the assertion of impartiality is speculation.
Kman (5576bf) — 4/26/2011 @ 2:19 pm(a) Any justice, judge, or magistrate judge of the United States
Michael Ejercito (64388b) — 4/26/2011 @ 2:23 pmshall disqualify himself in any proceeding in which his
impartiality might reasonably be questioned.
Joe – Dallas:
What’s “warpness” in your view?
There’s been study after study disproving your assertion. Whether it be psychological balance, intelligence, reasoning, interpersonal and social skills, etc. the child of a gay couple is not “warped” or “less than” in any way.
Kman (5576bf) — 4/26/2011 @ 2:24 pmMichael, there is nothing about disclosure in 455(a)
Kman (5576bf) — 4/26/2011 @ 2:25 pm(4) He knows that he, individually or as a fiduciary, or his
Michael Ejercito (64388b) — 4/26/2011 @ 2:26 pmspouse or minor child residing in his household, has a financial
interest in the subject matter in controversy or in a party to
the proceeding, or any other interest that could be substantially
affected by the outcome of the proceeding;
Comment by JD — 4/26/2011 @ 1:45 pm
Kind of reminds you of lovey, doesn’t it?
AD-RtR/OS! (b8ab92) — 4/26/2011 @ 2:28 pmKman
> I’m asking you for that statute that requires a judge to disclose information showing that he doesn’t have a bias.
Except you don’t even understand what bias is as demonstrated by your subjective/objective evidence frak up.
> Who said they were in LOVE?
Let him get on the stand and explain how the guy he has been with, that he has introduced as his “partner” is not someone he loves.
> Secondly, what makes you think it is so hard to be unbiased?
Again confusing the subjective approach with the objective one.
> No, I get that it is a reasonable person standard. Not an “objective” standard[.]
To quote from Preston v. United States. 923 F.2d 731:
> The standard for judging the appearance of partiality requiring recusal under 28 U.S.C. § 455 is an objective one and involves ascertaining “whether a reasonable person with knowledge of all the facts would conclude that the judge’s impartiality might reasonably be questioned.”
Going on:
> They know that the notion that Judge Walker wants to marry his partner is speculation.
And what exactly do you think is involved when you question his partiality. They are not saying you know for a fact, just that you would wonder. you know, based on SPECULATION.
Frickin’ idjit.
Aaron Worthing (e7d72e) — 4/26/2011 @ 2:30 pmKman
> Michael, there is nothing about disclosure in 455(a)
Technically correct but you are either 1) stupid or 2) lying.
Yeah, (a) doesn’t mention disclosure, because its in 455(e):
> (e) No justice, judge, or magistrate judge shall accept from the parties to the proceeding a waiver of any ground for disqualification enumerated in subsection (b). Where the ground for disqualification arises only under subsection (a), waiver may be accepted provided it is preceded by a full disclosure on the record of the basis for disqualification.
Aaron Worthing (e7d72e) — 4/26/2011 @ 2:32 pmYes, there have been numerous studies that refute my assertation. How credible are those “studies” How biased are they? Please explain how any individual is going to have “normalcy” in childhood seeing behavior that is opposite of the natural biological human programing. Thousands or “peer reviewed” studies dont overcome common sense.
Joe - Dallas (7416ca) — 4/26/2011 @ 2:32 pmJoe, Progressives do not recognize “common sense”, because it is so …. common.
AD-RtR/OS! (b8ab92) — 4/26/2011 @ 2:42 pmRight. But you want to recuse him WITHOUT knowledge of all the facts.
And I’M saying, “Suppose the facts are that he and this other guy are merely F-buddies, they’re not romantically involved (in the way you and I might envision it), and they have no intention of marriage and never did”?
Why is he required to disclose something like this?
Kman (5576bf) — 4/26/2011 @ 2:44 pmYyyyyyeah. Have a nice day.
Kman (5576bf) — 4/26/2011 @ 2:48 pmKmart continues to ignore that which is inconvenient for him, continuing to set up alternate hypotheticals which makes it easier for him to prove he is a mendoucheous twatwaffle.
JD (0d2ffc) — 4/26/2011 @ 2:55 pmand in conclusion gay peoples should get married if they want and people what don;t like it can suck it
hey lookit! here is a song by Bongo Joe for to click and hear! – you do not know who Bongo Joe is you say? Okey dokey you just click here and rectify your ignance.
Ok now you know about Mr. Bongo Joe.
This has been a day of learning.
happyfeet (a55ba0) — 4/26/2011 @ 2:55 pm*don’t*
happyfeet (a55ba0) — 4/26/2011 @ 2:55 pm“I despise Rev Terry Jones and his Koran-burning. But I can admit that he’s protected by the First Amendment.”
Yeah, well, you “admit” that because you’re just like the judge in the prop 8 case. You don’t believe in what the law says, you believe in what you think the law ought to say.
Jones’ burning of the Koran isn’t protected by the First Amendment in any way, shape or form.
What he might be protected by is a bunch of liberal judges who have twisted and perverted the law to the point where it’s no longer recognizable, IF they decide they feel like allowing Jones to burn Korans on any particular day.
Dave Surls (92f486) — 4/26/2011 @ 2:56 pmFacts which he were required to disclose. Without his disclosure, the parties could not make an informed judgment on whether to waive recusal.
Michael Ejercito (64388b) — 4/26/2011 @ 3:20 pmI read all these comments and kman hasn’t convinced me of anything. He just keeps repeating himself. And why is it, he always goes on and on when it is something written by Aaron. Perhaps he wants to be in one of those relationships with Aaron that he says Judge Walker was in with his long time personal “friend”. Even better, maybe he is Judge Walker??
PatAZ (81cf34) — 4/26/2011 @ 3:55 pmJD – I’m in favor of disclosure in almost all cases. I don’t know the applicable law well enough to know if he was required to recuse, but certainly he should have disclosed.
aphrael (e0cdc9) — 4/26/2011 @ 4:02 pmSo AW does not post for a few days, and there is no kmart. AW returns, and kmart follows shortly thereafter. Clearly a coincidence.
JD (109425) — 4/26/2011 @ 4:04 pmThank you, aphrael. I respect your opinion, mucho, even when I don’t agree.
JD (109425) — 4/26/2011 @ 4:12 pmAnd on this one, we appear to agree.
JD (d56362) — 4/26/2011 @ 4:23 pm“and in conclusion gay peoples should get married if they want and people what don;t like it can suck it”
I can live with that as long as the decision to go that way is based on what a majority of the voters want.
In this case, however, the decision is being made purely at the whim of one judge, who pretty obviously has an axe to grind…and, I don’t like that, especially given the record of the courts in this country (or any other country for that matter).
Being subjected to the possible tyranny of a majority is bad, being subjected to the actual tyranny of a handful of unelected judges is a whole lot worse.
If it was up to me judges would NEVER be allowed to decide the validity of a law, or much of anything else.
Dave Surls (92f486) — 4/26/2011 @ 4:26 pmmostly I just wanted to talk about Bongo Joe while staying on topic Mr. Surls I used to see Mr. Joe a lot in San Antonio when I was little
now he’s dead like Kurt Cobain and Evel Knievel
happyfeet (a55ba0) — 4/26/2011 @ 4:35 pmI blame Mormons. Blacks. Hispanics. Kock Brothers. And Bush.
JD (318f81) — 4/26/2011 @ 4:39 pmMustn’t forget Sarah Palin and those Menonites too. /sarc
Tanny O'Haley (12193c) — 4/26/2011 @ 4:48 pmKman
> But you want to recuse him WITHOUT knowledge of all the facts.
No, you are the only one here who doesn’t want to the judge to disclose the facts.
Although I would also say that objectively speaking, knowing the judge has been in a 10 year relationship with a man he has introduced to others as his “partner” is sufficient to make a reasonable person question his impartiality. You keep pretending the standard is some kind of inhuman certainty. It is not. It is merely questioning.
> Why is he required to disclose something like this?
Um, because we have a constitutional right to an impartial judge in both appearance and in fact.
Aaron Worthing (73a7ea) — 4/26/2011 @ 4:48 pmExactly kdiddleydoo.
DohBiden (15aa57) — 4/26/2011 @ 5:12 pmAt trial, Prop 8 proponents barely presented any witnesses (2 total compared to 15 for anti-prop 8)
The witnesses they DID present lacked credibility in their field of expertise. What’s more, they folded like a house of cards under cross-examination by Olson and Boies
The Prop 8 counsel seemed woefully unprepared or unaware of their own legal arguments. After asserting repeatedly that the state interest in marriage had to do with procreation, Prop 8 counsel was asked how permitting same sex marriage adversely affected that interest. The answer was, literally, “I don’t know”.
Even the conservative Liberty Counsel, which has litigated same-sex marriage issue in California before, recognized that the Prop 8 counsel was doing a crap job: http://lc.org/index.cfm?PID=14100&PRID=960
So let me suggest something to you. Perhaps the Prop 8 side lost…. because they lost. Perhaps they even lost because (gasp!) they actually are on the wrong side of the law, and Prop 8 actually IS unconstitutional.
Bias. Geez. What a bunch of desparate losers.
Kman (26c32e) — 4/26/2011 @ 5:36 pmbut the Prop 8 side won’t have lost if the decision gets vacated cause of this judge was shy about letting on that – you know – he was that way and all
happyfeet (760ba3) — 4/26/2011 @ 5:39 pmBUNNIES !!!!!!!!!!!!!!!!!!!!!!!
Notice how kmart wants to talk about everything except the actual standard applicable?
JD (318f81) — 4/26/2011 @ 5:41 pmRight. The Prop 8 side couldn’t win (in fact, had their ass handed to them) on the merits. So, plan B: try to get the case thrown out by alleging the judge was biased, even in the absence of facts that the judge was biased.
Cheesy.
Kman (26c32e) — 4/26/2011 @ 5:43 pmNow it is making stuff all and calling people names. It must have got into the box of white Zinfandel.
JD (318f81) — 4/26/2011 @ 5:45 pmI’ve ASKED for the applicable legal standard. The closest they came was a portion of a statute showing what a judge must disclose if he seeks a waiver of a potential conflict. Nice, but inapplicable.
When oh when will I be shown a statute that requires a judge to disclose facts showing that he isn’t biased? THAT’s the question of the day.
Kman (26c32e) — 4/26/2011 @ 5:46 pmWhen oh when will I be shown a statute that requires a judge to disclose facts showing that he isn’t biased? THAT’s the question of the day.
PROVE A NEGATIVE BEEYOTCHES!!!!!!!!!!!!
Your little act that nobody has shown you the standard, despite having been shown the standard repeatedly, got tired a long time ago. Now, when people read this thread they will get further proof what a silly Poofter you are.
JD (318f81) — 4/26/2011 @ 5:50 pmWhere o where has AW’s little stalker Git gone, o where o where could it be? With his wenis so short and his mullet so long o where o where could he be?
JD (318f81) — 4/26/2011 @ 5:52 pmNot to mention illegal aliens.
Judges are supposed to follow binding precedent, which in this case was Baker v. Nelson, 409 U.S. 810 (1972) and Adams v. Howerton, 673 F.2d 1036 They were both plainly dispositive in this case
They could not win because the judge defied binding precedent. See above.
Michael Ejercito (64388b) — 4/26/2011 @ 5:55 pm“Perhaps the Prop 8 side lost…”
…because the judiciary is packed with lying sacks of crap who believe in rule by judicial fiat, as opposed to rule by law.
Except, there ain’t no perhaps about it.
Dave Surls (92f486) — 4/26/2011 @ 5:56 pmStill waiting for someone to tell me why this actually matters, given that the case depends not on the resolution of any disputed facts by the trial judge, but on legal principles on which the appellate courts are entirely free to substitute their own judgment for the trial judge’s.
Beldar (67f528) — 4/26/2011 @ 6:02 pmwell there’s nothing for it but to go to court and see whether or not the judge being gay and all is a deal-breaker Mr. Kman
gay marriagings is not the biggest deal in the world when your little country is brokedick and all eated up with fail
happyfeet (760ba3) — 4/26/2011 @ 6:03 pmI had no idea Sarah Palin was in league with the damn Mennonites God help us all
no one tells me anything
happyfeet (760ba3) — 4/26/2011 @ 6:04 pmMichael and Dave – what you consider bugs, kmart considers features. He has no underlying principles, outside of not-AW, and cares more about the ends, as opposed to the means used to get there.
JD (318f81) — 4/26/2011 @ 6:04 pmIf the Prop 8 case was so compelling on the merits, then why didn’t they realize that the misconduct of the judge was going to poison their victory?
Not very competent work, in my opinion.
SPQR (26be8b) — 4/26/2011 @ 6:30 pmMaybe they did but by the time that happened it was all going downhill.
Michael Ejercito (64388b) — 4/26/2011 @ 6:38 pmI had no idea Happyfeet’s mom sniffed glue.
God forbid.
DohBiden (15aa57) — 4/26/2011 @ 6:49 pmthat was low Mr. Biden hey I made sun tea today you’d be surprised how many california people don’t understand the concept of sun tea… my sister had to bring me the jugs from Texas cause of I couldn’t find none here… but NG, who has people from New Mexico, and understands the concept very well, she says you can find them at walmart sometimes – I don’t have one of them in my zone though –
just by the way in case the walmart peeps is reading I have identified at least two perfectly suitable sites here in my zone and I’d be more than happy to point em out
happyfeet (760ba3) — 4/26/2011 @ 7:29 pmIt should be noted that it is not just the anti-vacatur side that is misunderstanding the issue. J. Matt Barber claimed that sexual orientation per se was grounds for recusal.
Michael Ejercito (64388b) — 4/26/2011 @ 7:45 pmNo Walmart in your zone, hf. You must live in the hoity-toity zone. Or maybe I live in the redneck zone, as my zone has 3 of them. Four if you count down on the border.
PatAZ (81cf34) — 4/26/2011 @ 7:47 pmHappyfeet – properly done sun tea is a thing of beauty.
How is NG and the little fellow? Give her my best.
JD (318f81) — 4/26/2011 @ 7:49 pmNG is great she’s skinny and beautiful and ready for the wedding, which is drawing nigh – little A is doing good – but they say he has “high muscle tone” … that’s sorta kinda the same (maybe) as being slapped with a diagnosis of cerebral palsy, which is a very vague sort of diagnosis to be slapped with, and there’s nothing for it anyway… you do your exercises and hope for the best. NG just seems happy and grateful he’s doing as well as he is, which is really pretty darn well.
happyfeet (760ba3) — 4/26/2011 @ 8:01 pmno not hoity toity I live in NoHo now, which is ghetto-adjacent… there’s a walmart in the ghetto in “Panorama City” but it’s not very convenient, and it’s very very ghetto – hispanic ghetto to be sure, which is the very best kind of ghetto, but still. It’s not worth the trip over there really. Plus it’s a two-story walmart and it has a cart escalator what looks like a horrific accident waiting to happen.
I get over there maybe once every two years I guess.
happyfeet (760ba3) — 4/26/2011 @ 8:05 pmMr. Feets – Did Bongo Joe jump the Snake River Canyon like Evel Knievel?
daleyrocks (bf33e9) — 4/26/2011 @ 8:05 pmI was reading about Botox being tried out on high muscle tone. Tell NG if she is not going to run away with me, she has to send me pics of the wedding. And an address to send this box of stuff to.
JD (318f81) — 4/26/2011 @ 8:05 pmI think they call NoHo, Valley Village. I had a buddy, he lived in Panorama City. He said they called it Mexicana City. Most of the valley is a disaster zone. Who woulda thunk it?
mr. diamantaire (70f08e) — 4/26/2011 @ 8:11 pmhah I will – I need the address too cause I’m not carting a gift to the reception
I will google about the botox that’s a good thing to know
Mr. daley Bongo Joe was magic and he only came out at night or at least I only ever saw him at night and he made the musics and he sang and you just wanted to stand there forever in the hot Texas night
it’s very hard to describe it’s just how he had a goodness to him and a wildness too
Texas lost something special when Bongo Joe went away.
happyfeet (760ba3) — 4/26/2011 @ 8:13 pmValley Village is one zone over it’s very nice – that’s more of a nice place to buy though than to live cause there’s really nothing to walk to – a bit here and there but nothing like NoHo or Studio City – it’s very peaceful over there
happyfeet (760ba3) — 4/26/2011 @ 8:18 pmIs it really ghetto, or more working class Hispanics, I don’t get the former vibe, that much from the area.
narciso (79ddc3) — 4/26/2011 @ 8:21 pmNoHo is very nice also, it has a bohemian, funky, writers feel about it. Overall, NoHo is still one of the better parts of the valley. Aaah, how fondly I remember the Palomino on Lankershim, that glorious honky-tonk. Ol’ Clint and his Orang Clyde patronized this fabulous urban cowboy bar. Good times in the late seventies. “Scrap the Caddie Clyde”. The biker gang, the Spiders were based out of Pacoima, or Sun Valley. Boy I sure loved the Valley.
mr.diamantaire (70f08e) — 4/26/2011 @ 8:27 pmit’s more working class Hispanic actually but I’m a romantic Mr. narciso so we pretend
the Palomino… I will try and find out if it’s still there or where it was and go see … the Spiders I’m pretty sure are in biker heaven
happyfeet (760ba3) — 4/26/2011 @ 8:30 pmKman
> At trial, Prop 8 proponents barely presented any witnesses (2 total compared to 15 for anti-prop 8)
First, where are you getting all this from? The judge’s opinion? GIGO, you know.
Second, they had more witnesses. Then the judge made his ruling on taping the trial.
> The answer was, literally, “I don’t know”.
No, it wasn’t.
> So let me suggest something to you. Perhaps the Prop 8 side lost…. because they lost.
Then it was stupid of the pro-side to let their victory be so tainted.
Of course you and I know that you don’t have to have very much to win in rational basis review.
> if he seeks a waiver of a potential conflict.
You can’t even restate the standard. Here’s a hint, jackass. The word “conflict” doesn’t appear even once.
Why? Because he could be biased in favor of THE RIGHT SIDE and while that is not a conflict of interest, that is still a bias for which he must recuse himself.
> When oh when will I be shown a statute that requires a judge to disclose facts showing that he isn’t biased?
I already answered the question. I pointed out to you that you didn’t understand the law so your question sucked. So I answered as best as I could.
For instance, here is what the court said in Porter v. Singletary, 49 F.3d 1483:
> Canon 3E(1) requires a judge to sua sponte disqualify himself if his impartiality might reasonably be questioned. The Commentary to Canon 3E(1) provides that a judge should disclose on the record information which the judge believes the parties or their lawyers might consider relevant to the question of disqualification.
They understand their duty to give the litigants enough information to draw their own conclusions about qualification, because guess what? A judge might not be the most impartial observer on the issue of bias. So the rules have given the judge a positive duty to disclose, even if you don’t think that it justifies recusal.
Again, didn’t they want an airtight, untainted ruling? Didn’t they want something that couldn’t be challenged on collateral grounds? If the pro-prop-8 types had such a miserable case, why not at least get them to waive concerns of bias?
You basically wanted to shove this judge into the closet and pretend there wasn’t a problem. Or because his obstruction makes it impossible for them to know for certain there is a problem, that should be the end of it. your worship of judges blinds you to all realities, even their blindingly obvious bias.
And in claiming that a judge doesn’t have to disclose facts relevant to whether he is biased, you are actually going against black letter law.
Beldar
First, in fact much of his ruling did rely on the facts he found. Seriously, read it. He constantly discusses the testimony, finding facts regarding the harm done to the plaintiffs, etc.
Second, that is not how it is supposed to work. The trial judges are supposed to do things the right way in the first place. Why have trial judges if the appellate judges are going to do the real work?
Aaron Worthing (73a7ea) — 4/26/2011 @ 8:35 pm_________________________________________
he had a longtime male lover.
I recall an older actress being interviewed by Jay Leno several years ago and her saying she didn’t know what to call her boyfriend when introducing him to people. She asked whether she should call him “my lover?” Leno sort of frowned and chortled. He said something about how that label would make her guests want to bring out the garden hose and yell “let’s spray these two people down!!”
We can argue the pros and cons of how Walker has dealt with Proposition 8 until we’re blue in the face. When all is said and done, I think deeply embedded in people like him is Andrew-Sullivan Syndrome. That’s an odd mix of leftism with a bit of rightism poking through on occasion.
In such instances, homosexuality seems to somehow damage a person’s sensibilities. Non-conformity (ie, “I’m an oddball and proud of it—and I demand people accept me!!”) clashes with conformity (“I’m an oddball, I’m embarrassed by it, and I should therefore change my ways!”).
The judgment of such people is prone to getting really messed up. IOW — and let’s be honest — a high percentage of guys tend to think with their crotches. So if their sexuality is very peculiar or non-conforming (or aberrant) to begin with, that very likely will affect them in general.
Mark (411533) — 4/26/2011 @ 9:14 pmGreat cite.
Subsection (a), the provision at issue here, was an entirely new “catchall” recusal provision, covering both “interest or relationship” and “bias or prejudice” grounds, see Liljeberg v. Health Services Acquisition Corp., 486 U. S. 847 (1988)but requiring them all to be evaluated on an objective basis, so that what matters is not the reality of bias or prejudice but its appearance. Quite simply and quite universally, recusal was required whenever “impartiality might reasonably be questioned.” Liteky v. United States, 510 U.S. 540 at 548
The goal of section 455(a) is to avoid even the appearance of partiality. Liljeberg v. Health Services Acquisition Corp. , 486 U.S. 847 at 860
Section 455(a) “covers circumstances that
Michael Ejercito (64388b) — 4/26/2011 @ 11:06 pmappear
to create a conflict of interest, whether or not there is actual bias” Herrington v. Sonoma County
, 834 F.2d 1488, 1502 (9th Cir. 1987)
“you just wanted to stand there forever in the hot Texas night”
I’ve had a lot of odd urges in my life, but standing in Texas forever ain’t one of them.
Dave Surls (906734) — 4/26/2011 @ 11:15 pmmichael
btw, while everyone is talking birth certificate, you are hitting a very important point. its not just bias, but even the appearance of bias.
Aaron Worthing (e7d72e) — 4/27/2011 @ 8:36 amCorrect.
And legal ethicist Jack Marshall argues that the district court decision should be vacated. A year ago he had written, “Why? Is there a presumption that a gay judge is more likely to rule that Proposition 8, banning gay marriage in California, is unconstitutional? There shouldn’t be, if Walker is a good judge, and nothing in his record suggests he isn’t.”
Michael Ejercito (64388b) — 4/27/2011 @ 9:08 ammike
and marshall believes the judge ruled correctly, but he is kind of a stickler on these ethical issues.
Aaron Worthing (e7d72e) — 4/27/2011 @ 9:10 amI don’t have all the facts but I believe the judge acted stupidly.
DohBiden (15aa57) — 4/27/2011 @ 9:26 amdoh
you’re just looking for a beer summit… for the free beer. 🙂
Aaron Worthing (e7d72e) — 4/27/2011 @ 9:27 amI might have made this point before, but Walker should not have even been in a position to directly and immediately benefit from his own ruling, because plaintiffs lacked standing to a statewide injunction prohibiting enforcement of Proposition 8 throughout California. In fact, binding precedent clearly stated that, if the county clerks’ denial of the marriage licenses had violated their rights under the law, the only relief they can seek is a writ of mandamus against those specific county clerks to issue the marriage license. See 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). Doran v. Salem Inn,
Inc., 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)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 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) 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)
Had the relief at issue simply been an injunction directing the defendant county clerks to issue the plaintiffs a license to marry, Walker would not have realized a direct, immediate benefit from grating that relief. But he stood to realize a direct, immediate benefit in issuing a statewide injunction prohibiting enforcement of Proposition 8 throughout California.
Michael Ejercito (64388b) — 4/27/2011 @ 12:40 pmBelated thanks to aphrael for replying to my questions.
Sounds like BFD to me. If the legislature had a sense of humor, they’d rename domestic partnerships and marriage both to something ridiculous – “mutual slavery” or “permanent hookup” and print that on every certificate, gay or straight.
(What’s in a name? A rose, by any other name, would smell as sweet.)
carlitos (c2a84d) — 4/27/2011 @ 12:56 pmCarlitos, that was (to me) the thing which was so amusing about Proposition 8 and Strauss v Horton. By using the words they did, the authors of Prop 8. made it just about the name, and the California Supreme Court (correctly) interpreted it to have no substantive effect other than the name. The ruling requiring equal rights, benefits, and responsibilities as a matter of state constitutional law still stands, as does the determination that sexual orientation is a suspect classification under state equal protection law and discrimination absed on it is subject to strict scrutiny.
All this sound and fury about a fscking name.
aphrael (c693bf) — 4/27/2011 @ 5:07 pmSounds like BFD to me. If the legislature had a sense of humor, they’d rename domestic partnerships and marriage both to something ridiculous – “mutual slavery” or “permanent hookup” and print that on every certificate, gay or straight.
(What’s in a name? A rose, by any other name, would smell as sweet.)
Yeah, one of the things disturbing about that whole case is that all these wealthy people decided to finance a challenge in a state with robust domestic partnerships, instead of a state like Oklahoma, with no domestic partnerships*
* Art. 2 § 35. “Marriage” Defined – Marriage Between Persons of Same Gender Not Valid or Recognized
A. Marriage in this state shall consist only of the union of one man and one woman. Neither this Constitution nor any other provision of law shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.
B. A marriage between persons of the same gender performed in another state shall not be recognized as valid and binding in this state as of the date of the marriage.
C. Any person knowingly issuing a marriage license in violation of this section shall be guilty of a misdemeanor.
Michael Ejercito (64388b) — 4/27/2011 @ 5:10 pmWith all those millions, could it not have been spent on a federal challenge where something more than a name was involved?
Michael Ejercito (64388b) — 4/27/2011 @ 5:11 pmI think part of the problem is that California (and Maine) is about the only place where gay marriage has been revoked, and so that act triggers a visceral reaction which isn’t as strong, if it’s there at all, in the case where it was never extended in the first place.
aphrael (c693bf) — 4/27/2011 @ 5:18 pmAnd since Maine has no domestic partnerships yet, why not stage the challenge in Maine?
Michael Ejercito (64388b) — 4/27/2011 @ 5:27 pm