Judge Walker's Impartiality
Last year, California federal judge Vaughn Walker announced that the Constitution contains a fundamental right to gay marriage. Long ago, I'm told that people used to read the Constitution when they wanted to know what it stood for. Nowadays, of course, the truth is revealed only to federal judges.
As bad as Walker's decision was (in my opinion), the question now before the court is whether the decision should be vacated because Walker had a conflict of interest. Here's the gist. At the time of the decision, Walker was a California resident, and had a long-term gay partner. In other words, by striking down Prop 8, he granted himself and his partner the ability to get married. For more, see Ed Whelan's comments at NRO, and the Ted Olson/David Boies brief defending Judge Walker.
What do you think? Disqualification is a powerful weapon, and it cannot be that a judge is disqualified from rendering a decision that might, in some way, inure to his benefit. But this is a pretty particular situation, since it sounds like Walker is in a relationship very, very similar to those of the lead plaintiffs in the case (Perry v. Schwarzenegger).
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Comments:
Oct '10
Re: Judge Walker's Impartiality
The very "Constitutional" basis of the decision is as much a fraud as the judge's personal lifestyle. Time to apply whatever force can be mustered to run those b-----ds out of office. Quit wasting time on the niceties. The Left has taken control over a once great America by not caring in the least about electoral or any other process. We are losing it all to these guys and it is long past time to start fighting back using more than nice legalisms.
Jun '10
Re: Judge Walker's Impartiality
What is it the liberal politicians say... "that may be my personal view, but I can not let my personal beliefs influence my decision." I suppose the Judge should have left his personal views out of it, as so many others like to do...
Jan '11
Re: Judge Walker's Impartiality
I like Whelan's detailed response. Well worth the read.
What I want to know is whether the plaintiffs knew he was gay, and deliberately brought the suit to his court. The plaintiffs are represented by David Boies and Ted Olson, both of whom I respect. However (forgive me all Ricochet lawyers), they are lawyers. You'd expect a lawyer to file a suit in a court that would be most sympathetic to their clients' case.
However, if they knew Walker was gay and then deliberately maneuvered the suit into his court, it would render their defense of the judge to be self-defeating. You can't judge-shop for a gay judge and then be ... shocked-shocked ... that the judge's partiality would be questioned.
I didn't like the decision. From a philosophical point of view, Walker's arguments frequently assumed what he was trying to prove. I also didn't like the fact that the State's lawyers were apparently incompetent, and Walker dismissed the core of their case at the very beginning.
Jun '10
Re: Judge Walker's Impartiality
I think a similar situation would be if a sports team went to court to break their downtown stadium lease, so that they could move out to the suburbs. And the judge rules for the team. What if we find out later that the judge, or his family, owned undeveloped land adjacent to the new stadium? Well, the judge could say, "we have no plans to sell that land." Maybe not, but he's certainly expanded his options, and his potential wealth.
Aug '10
Re: Judge Walker's Impartiality
This is trickier than it sounds since the plaintiff's case (and Walker's decision) is premised on the idea that the state has no rational basis for Prop 8 --- which in practice means that it does nothing to benefit heterosexual families. To argue that a gay judge would stand to benefit from 8's reversal whereas a straight judge would be impartial is implicitly to concede the plaintiff's case.
Oct '10
Re: Judge Walker's Impartiality
The court case was completely illegitimate, yes, and certainly not helpful to the gay marriage cause (exactly how turning all of society against you with totalitarian tactics is supposed to accomplish is beyond me, especially when your winning public opinion anyway).
May '10
Re: Judge Walker's Impartiality
I wonder how much of the opposition to Judge Walker's decision stems from disagreement with its procedure and how much from disagreement with its content.
Aug '10
Re: Judge Walker's Impartiality
I'm in agreement with anon_academic-arguing that a "valuable legal right" was at issue is self-defeating. The fraud at the heart of the "gay marriage" movement is the attempt to make words mean what the proponents want them to mean which is not what they have always meant. Put simply, "marriage" is a union between one man and one woman. A man can't have a "husband" and a woman can't have a "wife". So let them have their civil partnerships and good luck to them but don't pretend that it's the same thing as marriage or, most ludicrously,that it was always thus, people just didn't or wouldn't realise it.
Re: Judge Walker's Impartiality
The ABA code of Judicial Conduct is not binding on anyone (each state passes their own) but it's at least instructive. Open the link and read Rule 2.11:
http://www.americanbar.org/content/dam/aba/migrated/judicialethics/ABA_MCJC_approved.authcheckdam.pdf
The arguments for recusal can really be stretched.
Should all black judges have had to recuse themselves on Brown v Board of Education as it worked its way through the system?
When a Republican brings and election challenge to court, must all Republican judges recuse themselves?
Should female judges recuse themselves on matters of abortion?
And where will we get zoning board and planning board people? They all live in the town and are impacted by every application.
Oct '10
Re: Judge Walker's Impartiality
The 52.1% of Californians who passed Prop. 8 are at least openly in disagreement with Walker on the record. And that is the minimum of people who had their voices silenced by his act of fiat. Although I am not a Californian, my voice is that of an injured party also, since the Walker precedent will eventually lead to the same decision by the left wing court here in Colorado.
Without making any moral equivalency argument, Roe v. Wade started this same way costing this nation it's soul. The Prop. 8 overturn will not be the same, but the consequences here might also be, in it's own way, catastrophic.
Apr '11
Re: Judge Walker's Impartiality
Indeed, we are presented with a dilemma. If a judge rules in favor of something from which he stands to benefit then it's evidence that he ruled in his own interest, but if he rules against it then it's evidence that he's impartial? It sounds like we've already decided which ruling is the "impartial" one.
Oct '10
Re: Judge Walker's Impartiality
Wacky Hermit
Indeed, we are presented with a dilemma. If a judge rules in favor of something from which he stands to benefit then it's evidence that he ruled in his own interest, but if he rules against it then it's evidence that he's impartial? It sounds like we've already decided which ruling is the "impartial" one. · May 15 at 6:46am
You left out the honorable alternative... recusal.
Dec '10
Re: Judge Walker's Impartiality
I am always struck at how much of our system relies on an honest judiciary and also struck at how the legal profession presumes an almost superhuman level of integrity.
The judge knew exactly how he would rule and he knew that our law schools have developed enough legal theories that anything he would decide would have some support in some quarter somewhere.
He knew if he didn't take the case that it would be upheld. How could it get on the ballot if it was a moot question?
If he thought a reasonable judge would rule his way, he wouldn't be anywhere near this case for fear of tainting it.
We need civilian oversight of the legal profession. They are clearly unwilling to question or discipline their own and they are far too willing to let one judge's vote count for more than 14,000,000 others.