Thanks to the Judge Walker controversy, now have proof that the best legal ethicists in the nation are human. I suppose that’s something.
My colleagues in the legal ethics field are arguing—decreeing, really— that Judge Vaughn Walker’s decade-long same-sex relationship didn’t need to be disclosed before he ruled against Proposition 8 (California’s voter-approved gay marriage ban) because, they say, it created no reasonable doubts about his impartiality. Coincidentally, they also really, really like his decision. But then, so do I.
Almost all of these distinguished ethicists—people whom I read, respect, and frequently quote, also fervently argued five years ago that Justice Scalia’s participation in a large duck hunt with then-Vice-President Cheney created sufficient public doubts about the integrity of the judicial process that he should have recused himself from a Supreme Court case that had Cheney as a named party, and I agreed with them. But if you interviewed 100 reasonable, non-partisan fair and objective members of the public, is there any question that the vast majority of them would agree that a judge in an undisclosed same-sex relationship, deciding the constitutional status of gay marriage in the state in which he resides, has a far greater appearance of bias problem than a Supreme Court Justice who had participated in a duck hunt with one of the individuals named in the suit in his official (as opposed to personal) capacity?
To read the frankly insulting commentary issuing from otherwise respectable sources, you would think we live in Bizarro World. These experts argue that to even suggest that Walker had the appearance of bias is tantamount to bigotry. Well, I guess the vast, vast majority of the public—and me, and every single educated person I’ve discussed this issue with, is just bigoted and unreasonable. Still, that’s a problem, because the recusal rules are not there to protect the regard in which the judicial process and the rule of law is held by elite, progressive Democratic lawyers and ethics professors. It is there to ensure the faith and trust of the public—the normal people, the 99.99% who base their judgments on life experiences and not on reading legal ethics opinions, codes of conduct and legal ethics treatises all day long. And those people, the ones whose belief in the fairness of the judicial system is critical to the the nation’s vitality and existence, do not go through the labyrinthine, and I think, cynical, legal ethics analysis required to conclude that Judge Walker had no obligation to reveal his domestic status, because, really, it was completely irrelevant. They hear about Judge Walker’s late disclosure, and raise an eyebrow…because it raises reasonable doubts.
They think, in other words, that the case may have been fixed. Now, the more than 50% of the public that now approves of same- sex marriage may not get upset about the fact that the case seems to have been fixed, because they like the decision. But the appearance of an unfair process harms–grievously, I think—the public’s perception of the legal system, and that is what matters—and matters more than the fat of gay marriage. The legacy of this case, future appeals aside, is that a measure voted on and approved by California voters was overturned by a judge who had an apparent personal interest in the subject matter of the case, an appearance of a conflict which he intentionally failed to disclose until a full year after his decision, and the legal elite and academics brushed all of this aside as unimportant because they want same-sex marriage on the books.
“By any means necessary.” The ends justify the means. That’s a hell of a way for a democracy that supposedly was built on the rule of law and due process to render social change.
We are going to have legal same-sex marriage, in California and the rest of the country, sooner or later. That will be a positive development. The troubling question is whether the judicial system will have any perceived integrity left by the time it happens. It will not, if those who are charged with identifying and criticizing professional conduct that jeopardizes public trust in our courts allow their political and social beliefs to warp their own independent judgment.
38 thoughts on “The Ethicists, Backing Judge Walker and Gay Marriage, At An Unacceptable Price”
Judge Vaughn Walker’s decade-long same-sex relationship didn’t need to be disclosed before he ruled against Proposition 8 (California’s voter-approved gay marriage ban) because, they say, it created no reasonable doubts about his impartiality.
I think there is room in that statement for me. I admit the “appearance” exists but I agree that the “doubts” are not “reasonable”.
I mean, was Judge Walker picked because he was perceived to be a “life-long bachelor”?
Would it help if Judge Walker said that his 10-year relationship wasn’t monogamous?
It’s unreasonable to believe that any judge has no pre-existing views or concepts about marriage.
The point isn’t whether there are unknown factors that would mitigate or undercut the issue of bias, Tim. These are the same arguments I’m reading from the desperate ethicists. The appearance is based on the appearance. He wrote an opinion saying that the law against gay marriage denigrated ALL gay couples and made them second class citizens. He was part of a gay couple, and had it in his power to remove a stigma of significant power and importance. How can you say that doesn’t look like a bias? How can anyone? And how can you say making that straight-line presumption isn’t “reasonable”?
The intentional non-disclosure was the bigger problem. Had disclosure have been made from the outset, the issue of recusal would have already been settled.
As it turns out, Walker’s bias was not speculative (as it was at the beginning of this case) but demonstrated by these reversed procedural rulings.
– He issued a highly intrusive discovery order which was unanimously reversed by a Ninth Circuit panel, which issued an extraordinary writ of mandamus.
– In his fervent support to broadcast the trial, Walker resorted to procedural shenanigans. His attempts to broadcast were blocked by a stay order from the United States Supreme Court.
– Instead of issuing a narrow injunction directing the defendant county clerks to issue marriage licenses to the plaintiffs, he entered a broad, sweeping injunction prohibiting the enforcement of Proposition 8 throughout California, even though plaintiffs were not a class and did not have class certification. As the Supreme Court explained in Doran v. Salem Inn, Inc. , “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” 422 U.S. 922, 931 (1975)
– He refused to stay his ruling, which stood in stark contrast with every federal and state appellate court ruling on this question, including binding U.S. Supreme Court precedent.
– When he retired, he refused to return the video to the custody of the district court.
How can you say that doesn’t look like a bias? How can anyone? And how can you say making that straight-line presumption isn’t “reasonable”?
I didn’t. From the looks of it, they didn’t. I’m not saying the presumption isn’t reasonable. I’m saying that it is unreasonable to use this particular bias in this particular case for political posturing, given the alternatives.
Now that answer makes no sense to me at all. Who’s posturing? Not me. And what do “alternatives” have to do with the judicial ethics issue? Gee-tough alternative–find a judge who isn’t currently in a romantic same sex relationship who also lives in California. Or have a judge who is be open about it so the issue can be vetted and doesn’t look like it was covered up for 12 months. Isn’t THAT reasonable too?
Or a judge who does not live in California.
Venues in federal cases have been moved out of state before, like the Timothy McVeigh trial.
“I think there is room in that statement for me. I admit the “appearance” exists but I agree that the “doubts” are not “reasonable”.”
I see, as long as the person involved is liberal, it isn’t reasonable to assume that they might be swayed by obvious, personal bias and definite personal interest. Only the evil conservatives do that. Liberals should be free from conflict of interest legislation because they only rule the correct, progressive way. They, alone, are able to overcome personal interest and prejudice an be impartial and fair (or at least progressively-biased and politically correct).
Yeah, you found me out. I’m a RINO.
You know my stance, but here it is in a nutshell: “Everyone in this particular case has a bias.”
Given that (I know you don’t agree that everyone has a bias) his bias doesn’t strike me as a reason to vacate. Now, if you told me that he was directly impacted by the law, whereas a direct impact was a rejected marriage license or even an extended engagement, I agree, that crosses the threshold of a reasonable bias.
I know you don’t agree, but that’s my view point. I think you’re being too harsh on the matter and your interpretation. You think you’re right in line, and certainly a lot more people would side with your view than with mine. But I simply can’t get there from here.
But Tim, the fact that everyone is biased doesn’t make all biases equally damaging to the integrity of the system! If this case had been decided the same way by a heterosexual, married mother of two appointed by Ronald Reagan, nobody but nobody would argue that she was biased. We can’t insist on the least chance of bias, but we should at least make the effort not to maximize the appearance of bias, which when you include the intentional non-disclosure, was approached in this case.
And by the way, I am in the deep minority here, with my colleagues arguing that it is outrageous and ignorant to suggest that Judge Walker shouldn’t appear as pure as the driven snow.
Amazing. It’s an irrefutable fact that the whole same-sex fraud (a linguistic and moral error refuted by “The gay invention” at http://www.touchstonemag.com/archives/article.php?id=18-10-036-f) is fundamentally evil and fascist in nature, as seen in Kinsey and his fellow fascists in Germany, exposed at http://www.derjudithreisman.org also showing the decimation of our morals jurisprudence over the past half-century). The sheer scope of emergency reversals of Walker by the 9th Circus and SCOTUS due to his manifestly deranged lawlessness on this case is unmistakable proof of the need for vacating his clearly lawless fascist derangement disguised as law, except for those who share that lawless fascist derangement, common if not the majority among those who wear appropriately black robes to cover their threadbare “justice.” Matt Franck describes them quite well at http://www.thepublicdiscourse.com/2011/04/3213
Interesting. Actually, I rather like Judge Walker’s lawless fascist opinion; I just think it should have been written by a jurist whom the public doesn’t have good reason to think was hiding a personal agenda at the time he wrote it.
I have two questions.
Suppose a judge hears a lawsuit alleging sex discrimination in a school’s music program. During trial, a pattern of sex discrimination by those who run the program is clearly established, and the court finds in favor of the plaintiffs. Then, six months after the entry of judgment, it is discovered that the judge had a daughter attending the school, and she failed to disclose that fact. The defendants move to vacate the decision on this basis. Is vacatur justified?
Suppose a judge hears a constitutional challenge brought by polygamists alleging that Article I, Section 2 and Article 2, Section 35 of the Oklahoma Constitution violate various provisions of the U.S. Constitution. The judge issues summary judgment in favor of the defendant, 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 ruling, it is discovered that the judge was married to one of the legislative sponsors of Oklahoma’s Question 711, the ballot question that added Section 35 to Article 2 of the Oklahoma Constitution, and the judge failed to disclose that fact. The plaintiffs move to vacate the decision. Is vacatur justified?
If the answer to these questions is “no”, then there is no further ground for discussion.
So let me understand this… If a judge ruled on a
piece of legislation affecting marriage law, say decreasing the tax burden on married couples, or making divorce easier, and afterwards was discovered to be in a heterosexual relationship, because he preferred to keep his private life, you know, private, that would be a conflict of interest sufficient to vacate his decision?
It depends on what he can potentially gain from the ruling due to the relationship.
It is important to note that in most lawsuits, the judge is only deciding what the plaintiff is entitled from the defendant under law. For example, consider the example of a tax dispute between a married couple and the IRS, and the couple claims relief on the basis that the legislation imposing the extra tax burden is unconstitutional legislation discriminating against married persons. Since the judge would not be in a position to realize a direct, immediate benefit from granting relief to the plaintiffs, regardless of whether he is married, his marital status would not disqualify him.
Now let us consider the example of a same-sex couple suing a county clerk for an injunction directing the clerk to issue a license to them on the basis that they are entitled to the license by law. The judge in that case can not possibly benefit from issuing the requested relief, so a long-term, same-sex relationship would not be a basis for disqualification.
This was not the case here. The Prop. 8 proponents point out that the plaintiffs sought an injunction to prohibit enforcement of Proposition 8 throughout California, instead of merely directing the county clerks to issue marriage licenses to the plaintiffs. (It should be noted that plaintiffs lacked standing to seek an injunction providing relief to non-litigants.) In fact, the plaintiffs admitted that the injunction binds all county clerks in their Opposition to Chuck Storey’s Motion to Intervene (p.3) Effectively, this would require any of the fifty-eight clerks to issue a marriage license to Judge Walker and his partner if they were to request one. Because of this, being in a long-term same-sex relationship could put Walker in a position to benefit from his own ruling.
No, you’re not understanding this. I never said a thing, anywhere, about whether the opinion should be vacated. That’s a legal call, and that is not the subject of Ethics Alarms. I said that the judge’s undisclosed personal situation raised a reasonable question regarding his objectivity, whether he could, in fact, be objective or not. Neither law not ethics requires a judge to recuse because of a speculative general benefit, as with your examples. A specific benefit, as when a judge holds financial interests that will directly benefit from a ruling, does trigger an obligation. Judge Walker’s own opinion in the case make the argument that he and his partner will derive immediate and direct benefits from the elimination of Prop. 8 and the resulting elimination of a state sanctioned relegation of them to secondary-citizen status.
The judge can’t keep his private life, you know, private when conditions of his private life would raise a reasonable question about his objectivity and fairness. Gay Marriage, as an issue, involves private life….if he wasn’t willing to reveal relevant aspects of his personal life and deal with them openly, then his proper course was to refuse the case.
This is especially so because this particular case was treated as a class action, with an injunction prohibiting the enforcement of Proposition 8 statewide, even though the plaintiffs were not a class and did not seek class certification. Certainly, in a class action lawsuit, a judge must recuse if part of the class seeking relief.
(Under a line of binding Supreme Court cases like Doran (holding 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” ) 422 U.S. 922, 931 (1975) Monsanto Co. v. Geertson Seed Farms (narrowing injunction in part because the plaintiffs “do not
represent a class, so they could not seek to enjoin such an order on the
ground that it might cause harm to other parties”), 130 S. Ct. 2743,
Here’s a question:
If the judge hearing Prop 8 had been an active Mormon, who regularly attended the Oakland Temple, and was a member of a stake presidency in the Bay Area had heard the case, and decided in favor of Prop 8, would he have been unethical to not disclose his religious affiliation until shortly after his retirement months after the case was decided?
Why would it have been unethical? Religious beliefs are distinct from legal conclusions. A good Catholic judge should be able to decide that abortion is a right under the 9th Amendment, even though he believes it is wrong according to his Catholic teachings. If he can’t, he should recuse, but it is unreasonable to assume he can’t.
That is correct.
A Mormon would not receive a direct and immediate benefit, nor a direct or immediate loss, from a ruling on this issue merely because of religion.
In fact, a Mormon judge hearing a religious discrimination suit by a Mormon plaintiff would not be disqualified on the basis of religion.
The only way a Mormon judge could be disqualified because of religious faith is either in a class action lawsuit where Mormons are the plaintiff class or defendant class (as a judge hearing a class action lawsuit is automatically disqualified if the judge is a member of the plaintiff or defendant class) , or if the plaintiff seeks relief for all Mormons (just like how the plaintiffs in the Prop. 8 case sought relief for all same-sex couples, not just themselves).
Also, with regards to Judge Walker – prior to reports on his orientation, Walker’s conduct of the trial had raised questions of fairness from at least one proponent of same-sex marriage before the actual trial began:
If this is the case – then perhaps there was reason to ask “Why is the judge trying to cut these corners?”
Because the judge harbors a deep seated animus against the historical and traditional definition of marriage.
Prior to Walker, only three judges ever struck down the traditional and historical definition of marriage as a violation of the U.S. Constitution. And yet, none of the other three judges had authorized a grossly intrusive discovery, not tried to broadcast the proceedings in flagrant violation of the rules. And to this date, none of those three judges improperly handled material under court custody.
Judge Walker is not automatically assumed to be biased simply because he is gay. His bias comes from a possible personal stake he had in the ruling. It’s as simple as that. Even if he and his partner of 10 years had no plan to marry, in all likelihood he socialized with other gay people, some of whom may have married in the short time frame it was legal. Is it so inconceivable that a man who planned to retire in a year might not want to alienate his friends and associates and become a social pariah in a community that he was intimately acquainted with?
I know how strongly people feel about this issue but a little honesty is in order. How much faith would the average American have in this judicial ruling were they to become aware that a partnered gay judge from San Francisco struck down a constitutional amendment declaring gay marriage illegal? A great many Americans already view our political system as corrupt. So far, the judicial branch still has some standing but something like this would be one more nail in the coffin Americans have in the confidence in our judicial system. The belief in a fair and impartial judiciary is all that protects us from rampant lawlessness. Who would feel beholden to obey a law they believed to be derived from overt bias and self-gain? However much some people want gay marriage, is it worth that?
Congratulations! The Comment of the Day!
Of course not.
For another example, if a judge who had presided over a lawsuit involving Agudath Israel (a Jewish congregation) as a litigant were found to have been an Agudath Israel congregant during the case, the judgment in that suit would be questioned, regardless of whether it is legally correct. And it would be the judge’s membership in the congregation, not his Jewishness, that would be cause to vacate the judgment.
Howard Mintz is live blogging the hearing .
Initially, he grilled the proponents about the lack of evidence that Walker intended to “marry”.
Plaintiffs’ attorneys once again misrepresented the argument, claiming that the recusal was sought on the basis of sexual orientation. They also argue that the motion was untimely, even though the basis for the motion did not exist until recently.
Judge Ware asked the plaintiffs what the haerm would be, aside from delay, in vacating the motion and assigning the case to a judge without any doubts about bias.
I have to admit the notion that supporters of Prop 8 waited too long to request Walker’s recusal from the case is laughable. Walker NEVER DISCLOSED the relationship, so they never got the chance to make that request at first.
It’s on par with Thomas Penfield Jackson embargoing his interviews with Ken Auletta until after the case. They knew that public knowledge of the situation would raise questions of bias, and they proceeded to deny the public – and the parties to the case – that knowledge.
Much of the proponents’ case is based on Walker’s refusal to disclose, which constitutes evidence that he had a direct, immediate interest in the case.
Had Walker disclosed his relationship and unequivocally denied any direct, immediate interest in “marrying” his partner before the trial, proponents would likely lose a recusal motion on that basis. (Of course, the issue would have been settled before judgment.)
The motion was denied
Jack, what is your analysis of the decision?
Glad you asked:
1) I expected this.
2) I’m glad the motion was brought.
3) The key part of the opinion is the part that reads…
“In fact, the Court observes that Judge Walker, like all judges, had a duty to preserve the integrity of the judiciary. Among other things, this means that if, in an overabundance of caution, he were to have disclosed intimate, but irrelevant, details about his personal life that were not reasonably related to the question of disqualification, he could have set a pernicious precedent. Such a precedent would be detrimental to the integrity of the judiciary, because it would promote, incorrectly, disclosure by judges of highly personal information (e.g., information about a judge’s
history of being sexually abused as a child), however irrelevant or time-consuming. Contrary to the intent of Section 455, which was designed to preserve judicial integrity through practices of transparency, it is clear that fostering the practice of commencing a judicial proceeding with an extensive exploration into the history and psyche of the presiding judge would produce the spurious appearance that irrelevant personal information could impact the judge’s decision-making, which
would be harmful to the integrity of the courts.”
Translation: This is a can of worms we just don’t want to open, and don’t feel the system would be well-served if we did.
I can’t disagree. But he still should have disclosed.
The problem is that the information was relevant- unlike, say, any previous relationships Judge Walker might have had, which not even proponents argued that he was required to disclose A reasonable person could distinguish between Walker’s current and past relationships, such that the former is relevant while the latter is not.
To refer to an example that I had used in discussing this subject, if a judge hears a lawsuit alleging that a school’s music program impermissibly discriminates against girls, it is irrelevant if her daughter once attended the school but no longer does. It is relevant (at least for disclosure requirements) if her daughter currently attends the school.
The failure to disclose, I think, does raise a reasonable question of his bias. His conduct since the case, including the whole controversy over whether the trial would be broadcast AND the fact he has played the tapes in various forums since then, also raise questions. Add to that the inconvenient detail that any Supreme Court ruling is likely to be 5-4, and that there are 30+ states where the marriage amendments like Prop 8 were voted in by the people, and there will be a huge backlash as many people will believe that the majority of the judges decided to cover for one of their colleagues, who heard a case that he had a stake in. This will only add to a perception of being picked on that is growing in certain segments of America.
If the ruling was really such a slam-dunk, what would it have hurt the plaintiffs to accept vacating it, and starting from scratch?
There is the issue of delay.
The legal profession is overwhelmingly invested in the validity of gay marriage, and I honestly don’t believe this issue could get an unbiased examination anywhere, at this point.
I wonder why the legal profession is overwhelmingly interested in the validity of gay marriage to the point that they would allow this particular ruling to stand, especially as there is pending litigation from Massachusetts and Texas on this issue. (In fact, the Texas same-sex “divorce” case actually has the shortest possible path to a petition for certiorari to the Supreme Court) Is there something special about this ruling?
This would not be the first time that the SSM advocates inadvertently shot themselves in the foot. They successfully lobbied the Obama administration to stop defending DOMA. What happened is that briefing for Gill v. Office of Personnel Management was interrupted. The plaintiff-appellees’ opposition briefs had been due in March. Because of this, there is no briefing schedule, although the House, in its motion to intervene, suggested a briefing schedule which would have the reply briefs due by August, which further delayed the First Circuit’s disposition of the case.
If this is true, then if the Supreme Court does uphold the initial ruling by Walker (or even that Texas case), we’re looking at a ruling that will leave a large portion of Americans feeling disenfranchised. If you think the abortion debate was nasty, this will be even worse.
Are they TRYING to provoke a backlash??
There is more.
In the order denying the motion, the district court had cited Cheney v. United States District Court for the District of Columbia, 542 U.S. 367 (2004) in support of the holding that “[r]easonableness is not determined on the basis of what a particular group of individuals may think, nor even on the basis of what a majority of individuals in a group believe to be the case”.
In Cheney , the Sierra Club had filed a motion to recuse Justice Antonin Scalia from the case. 541 U.S. 913 at 923-29 (J. Scalia) The Sierra Club filed the motion on the grounds that Scalia went on a hunting trip with Vice President Dick Cheney, one of the litigants. The Sierra Club supported its motion on the basis that “8 of the 10 newspapers with the largest circulation in the United States, 14 of the largest 20, and 20 of the 30 largest have called on Justice Scalia to step aside . . . . Of equal import, there is no counterbalance or controversy: not a single newspaper has argued against recusal. Because the American public, as reflected in the nation’s newspaper editorials, has unanimously concluded that there is an appearance of favoritism, any objective observer would be compelled to conclude that Justice Scalia’s impartiality has been questioned. ”
How many of these same newspapers called for Judge Walker’s recusal, or at least admitted they were wrong about claiming that Justice Scalia must recuse himself? After all, if merely going on a hunting trip with a litigant who was a litigant in his official , not personal, capacity, is sufficient to cause a reasonable person to question Justice Scalia’s impartiality, and thus require recusal, how much more sufficient is it for asame-sex relationship to cause a reasonable person to question Judge Walker’s impartiality, and thus require recusal?
Ed Whelan also has some comments on the ruling:
“In fact, the core of Prop 8 proponents’ argument is that Walker had a ‘significant legal interest’ at stake in the case, as he was deciding whether to confer on himself a legal right to marry his long-time same-sex partner, and that Walker has no exemption from the venerable legal principle 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.””