I use the term “bias squared motion” to describe a motion to recuse a judge on account of alleged bias that is motivated by the movant’s own bias against a class of persons to which the judge belongs. The Ninth Circuit has addressed this issue before and may do so again if lawyers defending Prop 8 listen to the National Review Online instead of to common sense.
A 1995 “bias squared” motion in the Ninth Circuit was motivated by anti-Catholicism, a bias in the bar dating back to the execution of Lord Chancellor of England Thomas More under Henry VIII
The moving party claimed that Judge John T. Noonan, Jr. because he was a devout Catholic, could not hear a case involving abortion. Judge Noonan ruled that personal religious beliefs cannot be used as grounds for disqualification absent an objective showing that "incapacitating prejudice flows from religious belief." Feminist Women's Health Center v. Codispoti, 69 F.3d 399, 400 (9th Cir.1995) (Noonan, J.) (plaintiffs' motion for recusal of Judge Noonan denied) ("The plaintiffs seek to qualify the office of federal judge with a proviso: no judge with religious beliefs condemning abortion may function in abortion cases. The sphere of action of these judges is limited and reduced. The proviso effectively imposes a religious test on the federal judiciary [in contravention of the Constitution, Article VI]." Id.).
A motion to disqualify Judge Walker would not seek to impose a religious test on the federal judiciary, but would seek to disqualify Judge Walker simply because he has a relationship with another man who is not a party to the case. This time the answer is clear: F.R.C.P. Rule 11. And the reasonable expenses of opposing counsel in this case are presumably based upon the hourly billing rate for Ted Olson . . . .