Now that we know about Bert, should Judge Ernie have recused himself?
Judge Vaughn Walker, the Federal District judge who a year ago ruled California’s Proposition 8, which banned same-sex marriages, unconstitutional, was wrong. No, not about the law, which is pretty clearly unconstitutional: his opinion was fair and well-reasoned, and is likely to be upheld on appeal. Walker was ethically wrong in his handling of the delicate issue of his own sexuality, which had raised a controversy about his objectivity and ability to be impartial.
Two weeks ago, following his retirement from the bench, Walker publicly disclosed for the first time that he has been in a same-sex relationship for the past ten years. This changes the analysis regarding the propriety of his ruling on Perry v. Schwarzenegger. Walker had long been rumored to be gay; supposedly “everybody” knew he was gay. My position, as well as that of many others considering the arguments of anti-gay marriage opponents that he should recuse himself, was that sexual orientation could not and should not create a presumption of bias, any more than gender, age, race or marital status. Likewise, I approved of the judge’s decision to keep his personal life private: if his sexual orientation didn’t reasonably or fairly raise the issue of bias, then he was under no obligation to confirm or rebut what “everybody knew.”
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. A straightforward application of the judicial ethics rules compels the conclusion that Walker should have recused himself from taking part in the Perry case. [Note: I was alerted by a sharp-eyed blogger that this sentence exactly tracks with a line in the analysis of Walker’s non-recusal by National Review Online writer Ed Whelan. I had read Whelan’s piece, among several others, in working on my post, and did not intentionally steal his sentence, but it seems that I did. I apologize to him and my readers. I’ll leave Ed’s sentence here to remind me to be more careful. I should have linked to his NRO piece from the outset.]
Judge Walker wrote in his opinion that “Proposition 8 increases costs and decreases wealth for same-sex couples.” He found that marriage “benefits both spouses by promoting physical and psychological health,” and that “marriage is widely regarded as the definitive expression of love and commitment in the United States.” He concluded that “Proposition 8 places the force of law behind stigmas against gays and lesbians.”
Meanwhile, Section 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.” Is it reasonable to question the impartiality of a judge who is ruling on a provision with an apparent impact on his personal life, welfare and happiness? The answer has to be “obviously.” A publication of the Federal Judicial Center, “Judicial Disqualification: An Analysis of Federal Law” (2d ed. 2010), section 455(a) says that the law makes it irrefutable “that judges should apply an objective standard in determining whether to disqualify,” and “obviates making subjective judgment calls about what is actually going on inside a judge’s heart and mind.”
“A judge contemplating disqualification under § 455(a), then, should not ask whether he or she believes he or she is capable of impartially presiding over the case. Rather, the question is whether a judge’s impartiality might be questioned from the perspective of a reasonable person, and every circuit has adopted some version of the ‘reasonable person’ standard to answer this question.”*
California’s Judicial Ethics Code is more general, and thus implicitly calls for judge’s to err on the side of increasing public trust in the judiciary, not giving it reason to waver.
CANON 1
A Judge Shall Uphold the Integrity and Independence of the Judiciary
An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved. The provisions of this Code are to be construed and applied to further that objective. A judicial decision or administrative act later determined to be incorrect legally is not itself a violation of this Code.
ADVISORY COMMITTEE COMMENTARY
Deference to the judgments and rulings of courts depends upon public confidence in the integrity and independence of judges. The integrity and independence of judges depend in turn upon their acting without fear or favor. Although judges should be independent, they must comply with the law and the provisions of this Code. Public confidence in the impartiality of the judiciary is maintained by the adherence of each judge to this responsibility. Conversely, violations of this Code diminish public confidence in the judiciary and thereby do injury to the system of government under law.
The basic function of an independent and honorable judiciary is to maintain the utmost integrity in decision making, and this Code should be read and interpreted with that function in mind.
Does Judge Walker’s conduct in this matter constitute a “high standard” of conduct, or, at best, one that passes muster only through a generous reading of the law? The problem was not Judge Walker’s homosexuality, which in itself should not raise reasonable doubts about his ability to be fair and impartial, but his long term same sex relationship. He had a duty to disclose this at the outset, and based on the generally understood meaning of words like “reasonable” and “independence,” was ethically bound to recuse himself. Not doing so was a breach of judicial ethics.
* NRO’s Ed Whelan gets credit for the reference.
Ethics Alarms 
If there were no Prop 8, he’d be married already (maybe) and it wouldn’t have been an issue. Thank goodness the tide is turning, and in a few more years, this will all be history to be forgotten, just like Paul Revere (not).
Apparently being ethically wrong in his handling of the case doesn’t matter if you line up his decision against the Law. Which is what he was supposed to do in the first place, right?
It’s all a cluster and a train-wreck. By luck of the draw, he presided over the case. Had his comparative twin with a different situation been presiding, they would have had the same conflicts.
You have to exclude 1) The Religious, 2) The Married, 3) Those who Aspire to be Married, 4) Those who would benefit from the ruling, 5) Those who would be hurt by the ruling. Who does that leave?
Honestly, can you tell me who should have presided over the trial? Are they single, married, male, female, bisexual, homosexual, heterosexual, committed, despondent, angry, sympathetic…
That’s why this was so contentious. Everyone is affected and everyone should recuse themselves.
I think he handled it perfectly. I like that no one was able to pigeon-hole him as the trial proceeded. I like that they were forced to pick apart his ruling based on law and facts. And I like that now that he’s disclosed his disposition, people can go back through his ruling taking into account that bias and look for problems with his ruling. (if any)
The only other way to have done it is with a 5 judge panel loaded with politically appointed judges of fringe views and 1 centrist. Of course, you probably could leave it to the centrist.
The difference is that Judge Walker had a conflict of interest. He had more than an ideological stake riding on the judgement, he had a financial one. It is like asking a Judge who is an avid collector of classic cars to rule over whether or not classic cars should be required to meet modern emission requirements. He might make the right ruling, but unless he rules against his interests it will look bad.
Michael’s right, Tim. There is no appearance of impropriety and no perceived conflict if a judge is gay or straight, any more than Justice Marshall had a conflict deciding civil rights cases….unless one presumes that a black man or a gay be objective. But if Marshall or his son was going to directly benefit from his own ruling, that’s a conflict, appears to threaten his objectivity, and he would have had to recuse. Same here. The judge withheld an aspect of his life that went beyond sexuality—irrelevant—-to the status of his relationship and government and social treatment of same. Clearly mandatory recusal.
So, his conflict arises because he’s in a relationship and not single? Wouldn’t single gay people benefit because they know that sometime in the future they’ll receive the benefit?
A straight man who is married benefits from making sure the marriage system isn’t collapsed and that his spousal benefits continue.
A single straight man ensures that if he chooses to utilize spousal benefits in the future, they’ll be available so long as the marriage system doesn’t collapse.
What benefit did Judge Walker get again? Or rather, what is it you reasonable people are bitching about? I’m not seeing it.
Tim…you are seriously misunderstanding both the conflict principle and the appearance principle.
So, his conflict arises because he’s in a relationship and not single? Wouldn’t single gay people benefit because they know that sometime in the future they’ll receive the benefit?
No. Reasonable appearances of impartiality are not based on speculation about what might occur in the future. The question is, as of this moment, is he faced with a decision that has an immediate tangible and material affect on his own status and welfare? The answer is yes. Ergo, he has a conflict, and even if he reasonably and correctly assesses that he can make that decision without bias, it is reasonable to believe he cannot.
A straight man who is married benefits from making sure the marriage system isn’t collapsed and that his spousal benefits continue.
Nope. Too attenuated to be certain and immediate—you’re assuming belief. We have no idea if the judge believes that, and if he doesn’t there’s no conflict. The relationship is real…it isn’t a belief. Surely you see that?
A single straight man ensures that if he chooses to utilize spousal benefits in the future, they’ll be available so long as the marriage system doesn’t collapse.
Both speculative and uncertain. Not a conflict, not by a long shot.
What benefit did Judge Walker get again? Or rather, what is it you reasonable people are bitching about? I’m not seeing it.
Tim, conflicts do not require benefits, but a situation where the difference in outcomes strongly favor one decision because it works in the judge’s favor. The benefits, however, are identified by the judge himself:
“Proposition 8 increases costs and decreases wealth for same-sex couples.” Deciding against the law decreased costs and increases wealth FOR HIS OWN “COUPLE.”
Permitting marriage “benefits both spouses by promoting physical and psychological health.”
“Proposition 8 places the force of law behind stigmas against gays and lesbians.” His decision will remove a stigma from his own relationship.
What is it you don’t see?
“Proposition 8 increases costs and decreases wealth for same-sex couples.” Deciding against the law decreased costs and increases wealth FOR HIS OWN “COUPLE.”
Permitting marriage “benefits both spouses by promoting physical and psychological health.”
“Proposition 8 places the force of law behind stigmas against gays and lesbians.” His decision will remove a stigma from his own relationship.
What is it you don’t see?
I’m glad you articulated the above. I now understand (see) your point of view. However, I must say I still disagree with your assessment.
First: “Proposition 8 increases costs and decreases wealth for same-sex couples.” does not mean Deciding against the law decreased costs and increases wealth FOR HIS OWN “COUPLE.”
The first sentence is a truncation, if not from the text, from the thought. It’s a comparative sentence. I read it with this on the end: “…compared to different-sex couples.” Add that to the end of both statements above and see if your principle still holds true. In reality, by striking down Prop 8, he returned costs and wealth to their original levels (The levels before Prop 8.) Your line of reasoning sounds a lot like the budget debate and the bush tax cuts.
Second: Sure, he gets the benefit of physical and psychological health. But I don’t think that’s a revokable conflict of interest. If we as a society don’t see the benefit of making a large swath of our population have physical and psychological health, then I’m not sure I want any part of it.
Third: How about a law that declares black people lesser beings. When a black judge tries to rule against it, we’ll tell him that he will benefit from the ruling and that he has a conflict of interest.
Look, you’re talking about speculative benefits? You’re acting like he was ENGAGED! No where did it say he was engaged, just that he was in a long term relationship. You are speculating that he even would get married.
Different-sex couples can get married after knowing each other for 10 minutes. That means a long term gay relationship and a single gay person have the same status and are likely to see the same speculative benefits. However, someone who is ENGAGED would have a conflict of interest because their intent would be known to collect those benefits as soon as they became available.
Any of that make sense?
The difference is that Judge Walker had a conflict of interest.
Yes, he had a conflict of interest, but that’s not a difference.
He had more than an ideological stake riding on the judgement, he had a financial one.
So do those who have a financial interest in making sure that the marriage system doesn’t collapse.
It is like asking a Judge who is an avid collector of classic cars to rule over whether or not classic cars should be required to meet modern emission requirements.
No, it’s not. You could find a judge who rode his bike to work, walked to work, drove an SUV, drove a Prius, or drove a beater. Or any combination of the above. In this situation, you’d be hard pressed to find a judge that was asexual.
Well you could find a judge that didn’t have tens of thousands of dollars in spousal benefits riding on his judgement. Spousal benefits for a judge like that probably include a very cushy health care package (the one Michigan teachers get is $20,000/year). That is what creates the conflict of interest. If he rules one way, he gets tens of thousands of dollars, if he rules another way, he gets nothing.
Yeah, but it’s just as likely that gay marriage places an insurmountable burden on spousal benefits in the cash strapped state of California and then they aren’t offered. Knowing that, an already married straight Judge has a financial stake in making sure that prop 8 is upheld.
In fact, had the venue been moved out of state, the judge would not have any conflict with respect to himself/herself, even if the judge was in a long-term homosexual relationship and had concrete plans to marry the partner if same-sex “marriage” was legalized.
Great point, and one which I haven’t seen in print on this matter.
Indeed. Had there been a constitutional challenge to Arizona’s Proposition 102 filed in 2009, and in procedural rulings the venue was changed to the Northern District of California, Walker would clearly have not had a conflict of interest with respect to his relationship.
In the interest of disclosure, I am against gay marriage. There are many laws preventing certain types of marriages such as sister/brother, first cousins, father/daughter, mother/son, multiple marriages, sex between humans & animals (can’t marry an animal), etc. etc. Physically, we are designed for man/woman copulation. There is no constitutional right to marry. It is a God given right that has been in existence for thousands of years.
Gays could accomplish all the rights they desire by a legal contract which doesn’t require an actual marriage. I also found it grossly unethical when gays dressed in all sorts of sexual paraphernalia protested in churches. There’s no way that religions should be forced to accept to marry same sex couples.
Children are entitled to a mother and father who each have their own unique attributes to ensure their own development. Despite the rising divorce rate among heterosexuals, children still realize they have a mother and a father.
The above are my beliefs. But, I have found it extremely ironic how same sex couples who’ve ended up based on jurisdiction who’ve gotten married, aren’t very pleased with the family courts when they want a divorce, or sue to get custody of a child (either adopted or by surrogate). In other words, they’ve stepped into a quagmire. Most of the gay marriages are doomed to go the way of heterosexual marriage. In the case of homosexual males, it might even become more intense. Lesbian couples manage to have at least one of them get pregnant by in vitro fertilization. Then comes the ‘divorce’ and the issue of child custody. It becomes a virtual nightmare. I know, because I report on it on my website.
As for Judge Walker, he is now on the lecture circuit, obviously making big bucks since his retirement, and using clips from the trial that actually shouldn’t belong to him. I definitely believe is it unethical.
His decision still could be nullified by his failure to recuse, but it won’t be. The videos are a different kettle of fish…I confess, one that doesn’t interest me much.
It should be vacated; the proponents and/or Imperial County should file the motion to vacate per the Supreme Court’s precedent in Liljeberg vs. Health Services Acquisition Corp., 486 U.S. 847 (1988)
And before one argues that vacatur should be avoided because it would prevent a Supreme Court ruling on the merits, note that there are currently two cases involving similar legal issues in courts on the rung below the Supreme Court. ( Gill v. Office of Personnel Management and In Re Marriage of J.B. and H.B. ) A third case in Oklahoma, Bishop v. Oklahoma , will likely be decided at the district court level this year and will alsmot certainly make it to the Supreme Court via writ of certiorari before judgment if the other two cases are granted cert.
Dorothy, in response to your claim that “Gays could accomplish all the rights they desire by a legal contract which doesn’t require an actual marriage,” the truth is that no private contract between two persons, same sex or opposite sex, can give the parties all the benefits of civil marriage. The law, both state and federal, specifically restricts numerous benefits to persons who are “spouses”. For example, except as provided by statute, a married person has a privilege not to testify against his spouse in any proceeding, and is entitled to unpaid leave from her job to care for an ill spouse. Plus, most employer pension plans pay survivor benefits only to a legal spouse. Similarly, by law, employers may offer health insurance premiums *tax-free* to the employee’s spouse. Two persons cannot obtain these benefits by simply signing a private contract between them. And whatever limited benefits two people might obtain by hiring a lawyer and signing some private contracts will likely be substantially more expensive and far more complex than a mere $50 and an “I do”.
Thanks for untying a lot of knots in this one, Tim. They were bothering me.
Jack, one more: — I am just getting the hang of the ethical-argument borders, realizing where I spill over (not apologizin’, jus’ sayin’) — but I have to point out that just because a couple has been together for ten years, or twenty-five, or fifty, does not automatically mean they will choose marriage, given the option. It is your assumption that that would be the decision for the Judge-and-family. Even if it turns out they would be first at the license counter (should they have the opportunity!) you don’t know that was how the Judge felt or believed at the time. As it happens, and in spite of all the loud foofaraw when 8 came to the voters, there are plenty, if not a majority, of gay partnerships whose members do not want to entangle themselves in a standard marriage contract, financially or otherwise. In fact, if it weren’t for the cases in which legal marriage would benefit the children, natural or adopted, — something you have been stumping for quite recently — a great many gay and lesbian couples would continue to look askance at (yet) another failed straight tradition. If the alleged future benefits are not there — and you have no way of knowing that they were — then: [**maybe too late for clever analogy**], let’s say you can’t assume that the pitcher beaned the batter with malice aforethought because everyone knew the batter was playing around with his wife, if the pitcher didn’t know himself, even though he would probably do it if he did, and if you can straighten that one out, good luck to ya.
Arrgh! The rampant “I’m getting confused about appearance of bias and impropriety” virus is spreading! I’m failing miserably here. Let me try again:
“…just because a couple has been together for ten years, or twenty-five, or fifty, does not automatically mean they will choose marriage, given the option. It is your assumption that that would be the decision for the Judge-and-family.”….No. It doesn’t matter if they would choose marriage in fact, or even if the judge is certain that they would not. It doesn’t matter if there was any real bias at all, or whether there was going to be any real benefit. The question is how it looks. and it is reasonable for an objective individual to have serious and legitimate doubts about the objectivity of a judge whose own relationship would gain a perceived and tangible benefit from a particular ruling. The objective is to protect the integrity of the justice system, and the public’s trust in its fairness. Achieving that objective is explicitly a duty of all judges.
It’s the appearances that count. Nobody’s going to believe that the beanball was unrelated to the affair, so as far as public perception goes, the truth is irrelevant. This isn’t about punishing the judge for being biased, it’s about the judge not taking appropriate measures not to be perceived as biased.
As to “how it looks”, it looks to me that Judge Walker’s Prop 8 decision did not give himself access to substantial benefits that (1) he hadn’t already turned down when he chose not to marry his partner during the period of time when it was legal for him to do so in California, and (2) which he has and continues to be fully entitled to receive under California’s Registered Domestic Partnership law. And (3) he has always and continues to have the right to marry and receive all the marriage benefits, just like anyone else. That’s what I’ve heard people saying for years. And yet, time after time, Judge Walker has constantly shown that he has no interest in it. That’s how it looks to me, and I’m as objective as any person on the planet.
Read what his opinion said about how the law stigmatizes gay couples: no law, no stigma. The benefit doesn’t have to be financial.
His past choices are irrelevant as much as his future choices. And just because this judge might not have an interest, A judge in is position reasonably could be presumed to feel otherwise,which is why it still looks bad.
When it comes to “how it looks”, Judge Walker’s past and future choices are neither apart from “his position” nor are they “irrelevant” to a reasonable person. And if you “presume” that Judge Walker “felt” that he had a substantial interest in the outcome, that’s your presumption, your bias, that you’re projecting onto Judge Walker. I’ve read Judge Walker’s decision, and your arguments are not persuasive. Judge Walker is an old man. A reasonable person does not believe he’s going to be substantially less stigmatized in his lifetime by overturning Prop 8 than if he let it stand. And a reasonable person does not believe that Judge Walker believed it either.
Looks like I was concentrating in the wrong place. Sorry about that.
Depends on “the way it looks” is what I cannot get around.
The way it looks . . . to whom?
“The reasonable observor.” You know. ME.
The motion to vacate for lack of disclosure is online .
The opposition brief is here .