And the recusal wars go on . . .
A few weeks ago there was the claim that Justice Scalia needed to recuse himself from the Walmart case because his son had done unrelated legal work for Walmart – a novel and unjustified recusal theory. Justice Scalia would be well advised to cut back on his own tea partying and duck hunting with persons interested in cases before the Court, but his son’s list of current and former clients is not automatically the Justice’s recusal list without some connection between his son and a case before the Court.
This week the recusal debate has reached yet new lows. Two bloggers at the National Review Online have accused federal district Judge Vaughn Walker of unethical conduct because (i) they do not agree with his decision in a case, (ii) the case involved same-sex marriage in California, and (iii) Judge Walker lives in California and has a stable relationship with another man. Never mind that the Judge has not sought a marriage license. His hearing and deciding the case was a “rampant course of misconduct”
The absurdity of this claim is obvious. The mere fact that a judge belongs to a class of persons affected by a case does not require recusal. If this were the rule, women judges could not sit on sex discrimination cases – and neither could men judges for that matter. Black judges could not sit on race discrimination cases – and neither could white judges. And so on. Wrong.
And this case is somehow different because of the possibility – not manifested by any action taken on the Judge’s part -- he could at some later point in time exercise the same sex marriage right that is at issue in the case. He must therefore recuse, just as a judge who might ever want to buy a gun should never decide a Second Amendment case, and a judge who might ever want to sign a living will should never decide a right to die case, and a judge who might ever want to leave the bench to run for elected office should never decide a campaign finance case. Wrong again. Without more – much more -- evidence that the judge’s personal interests are closely aligned with those of a party to the case, recusal is not required.
What is unfortunate is that the argument here is not only ludicrous, but that the National Review bloggers have framed it in language that shows their own bias – both against a highly regarded federal judge and against an entire class of persons.
Judge Walker, who was appointed to the bench by President George H.W. Bush, should take comfort in the fact that he is in good company. The same tag team of bloggers has attacked the lawyer in the same case, famed GOP litigator Ted Olson who argued and won Bush v. Gore. One of the bloggers said that Olson’s actions in the California Prop 8 case are influenced not by his clients, but by his wife:
The other blogger is even cruder – and openly homophobic -- in calling Olson’s argument “the Gay Gettysburg Address”:
I personally do not agree with Judge Walker’s decision in this case (I would leave the gay marriage debate to the states). The fact that I do not agree with the ruling, however, does not make the Judge biased or the winning lawyers unethical. This latest round of attacks on Judge Walker and Ted Olson has much more to do with the sloppy reasoning and prejudices of their attackers than with the conduct of the Judge or the lawyers in the case. Judges’ ethics and lawyers’ ethics are important topics, but partisan attacks – and bias against large portions of our population -- disguised as ethics are an embarrassment to those who take ethics seriously.