Mr. Whelan has two posts, addressing two aspects of Judge Ware's opinion:
"First, Ware determined that Walker was not required to recuse himself under section 455(b)(4) (of Title 28 of the U.S. Code), which requires that a judge recuse himself from a proceeding when the judge has any “interest that could be substantially affected by the outcome of the proceeding.” (Ruling at 5-12.) Second, Ware concluded that Walker’s recusal was also not required under section 455(a), which requires that a judge “disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” (Ruling at 12-19.)"
On the first question, Whelan writes, in part:In addressing Prop 8 proponents’ argument that Walker’s long-term same-sex relationship in California meant that he had an actual interest in the case that he was deciding, Ware sets forth this “legal conclusion”:
In a case that could affect the general public based on the circumstances or characteristics of various members of that public, the fact that a federal judge happens to share the same circumstances or characteristic and will only be affected in a similar manner because the judge is a member of the public, is not a basis for disqualifying the judge under Section 455(b)(4). [Punctuation error in original.]
Applying this “legal conclusion” to Walker’s situation, Ware declares: “In particular, in a case involving laws restricting the right of various members of the public to marry, any personal interest that a judge gleans as a member of the public who might marry is too attenuated to warrant recusal.”
Taken on its own terms, Ware’s stated “legal conclusion” would compel the stunning result that a judge need not recuse himself from a case asserting an expanded right to marry even if it is crystal-clear that the judge desires to avail himself of the right that he is deciding whether to create. Under his reasoning, the fact that a judge “gleans” a “personal interest” only “as a member of the public” (rather than, as I understand it, as a party to the very case) somehow dictates the conclusion that his interest is “too attenuated to warrant recusal.”
Ware’s “legal conclusion” makes no sense. I’ve previously offered the hypothetical of a judge who desires to enter into a series of polygamous marriages and who is assigned a case in which plaintiffs are challenging the anti-polygamy laws of the state in which the judge lives. As I stated at the time, legal ethicist Stephen Gillers “acknowledges that the judge’s recusal would be required,” and “I find it difficult to imagine that there would be any legal ethicist anywhere who would maintain otherwise.” But Ware evidently would. Under his “legal conclusion,” the hypothetical case “could affect the general public based on the circumstances or characteristics of various members of that public”—the relevant characteristic of those various members being that they are aspiring polygamists—and the fact that the judge “happens to share” that characteristic “and will only be affected in a similar manner because the judge is a member of the public” (rather than a party to the case) “is not a basis for disqualifying the judge under Section 455(b)(4).”
On the second question, Whelan writes, in part:"Ware contends that the case for Walker’s disqualification “depends upon the assumption that a judge who is in a relationship has an interest in getting married which is so powerful that it would render that judge incapable of performing his duties.” (Emphasis added.) He adds in a footnote that “the mere fact that an individual is in a relationship with a person does not necessarily imply that that individual is interested in getting married to that person at all.” (Emphasis added.) Indeed, he says that Prop 8 proponents’ supposed contention that “almost two-thirds of committed same-sex couples in California would get married if permitted to do so … suggests that more than one-third of such couples in California have no interest in being married.” (Emphasis added; brackets omitted.)
As the italicized passages show, Ware is blatantly stacking the deck by burying the “might reasonably be questioned standard” of section 455(a) (a judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned”) and replacing it with a much higher standard of incontrovertible proof of inescapable bias. That is not what section 455(a) says, and it is not what section 455(a) has ever been held to mean.