Thursday, April 21, 2011

Legal Analysts on Both Sides Say Judge Walker Should have Recused Himself

Judge Vaughn Walker's revelation that he is in a long-term same-sex relationship has caused legal experts who both oppose and support his ruling in the Proposition 8 case to agree that he should have recused himself.

Ed Whelan makes the case:

"Two weeks ago, former federal district judge Vaughn Walker, who ruled last summer in Perry v. Schwarzenegger that California’s Proposition 8 is unconstitutional, publicly disclosed for the first time that he has been in a same-sex relationship for the past ten years. A straightforward application of the judicial ethics rules compels the conclusion that Walker should have recused himself from taking part in the Perry case. Further, under well-established Supreme Court precedent, the remedy of vacating Walker’s judgment is timely and necessary."

Mr. Whelan also says that Judge Walker's ruling should be vacated:

"Now that Walker has finally disclosed facts that would have warranted his disqualification from Perry, the appropriate remedy is for the Ninth Circuit — or, if necessary, the Supreme Court — to vacate Walker’s judgment upon a request by Prop 8 proponents. As the Supreme Court ruled more than two decades ago in Liljeberg v. Health Services Acquisition Corp. (1988), where a district judge has violated section 455(a) by deciding a case that he should have disqualified himself from, it is 'appropriate to vacate the judgment unless it can be said that [the losing party] did not make a timely request for relief, or that it would otherwise be unfair to deprive the prevailing party of its judgment.'”

Jack Marshall, a lawyer and ethicist who supports Walker's ruling agrees that Judge Walker should have recused himself:

"Reluctantly, I have to agree that his disclosure, a year after his ruling, that he was in a committed relationship with a man when he was ruling on Proposition 8 alters that conclusion. Weeks ago, former federal district judge Vaughn Walker, who ruled last summer in Perry v. Schwarzenegger that California’s Proposition 8 is unconstitutional, publicly disclosed for the first time that he has been in a same-sex relationship for the past ten years. A straightforward application of the judicial ethics rules compels the conclusion that Walker should have recused himself from taking part in the Perry case."

It's interesting that both experts, diametrically opposed on Walker's ruling, use exactly the same sentence to describe his unethical behavior.

4 comments:

Jack Marshall said...

I don't think it's interesting that I used the same sentence; it was careless. I had read Ed's piece among others while preparing the post, and clearly was channeling him in that sentence. I've included a link to his piece and an apology in the post. I didn't intend to rip him off, but I did, and I thank you for pointing it out.

Fr. John Malloy, SDB said...

Thanks, Mr. Marshall. We certainly didn't mean to imply that you "ripped off" Mr. Whelan.

We actually DID think it was interesting you both used the identical sentence, and just chalked it up to a shared take on the issue in question.

Michael Ejercito said...

People tend to use similar reasoning when arriving at a correct conclusion.

A.Worthing said...

Let me add that law is a little bit like math in that in theory if you are doing it right, everyone should be saying the same thing.

its very common, then, for people to notice parallels in language when talking about the law.

for instance, i had alot of fun pretending that the states in the florida obamacare case were cribbing off of me, here.

http://patterico.com/2011/02/24/in-which-the-attorney-general-of-florida-apparently-cribs-off-of-me/

But bluntly when we think the same thing that is what is supposed to happen. And it makes it hard to avoid using the same language.

That being said, its very cool of Marshall to apologize.