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Dean and law professor at Chapman Law School, John Eastman, agrees that the Supreme Court should vacate the judgment in Perry v. Schwarzenegger. Judge Walker should have recused himself.  

Judge Vaughn Walker’s Proposition 8 decision last week has thrust his personal life into the limelight. The San Francisco Chronicle has reported that the fact that Judge Walker “is himself gay” is the “biggest open secret” in town. The BuzzTab blog calls him “the apple of gay advocators eyes.” The Los Angeles Times reported just last month, after the conclusion of closing arguments in the case, that he is “openly gay” and “attends bar functions with a companion, a physician.”

Is any of this relevant to Judge Walker’s ruling striking down Proposition 8?

Well, as University of Notre Dame law Professor Gerard Bradley recently noted, the mere fact that Judge Walker may be homosexual would not necessarily have required recusal. But the fact that he “attends bar functions with a companion, a physician,” and may therefore be in a stable homosexual relationship of the kind that could lead to marriage, is an entirely different matter.

…A judge is required to disqualify himself in any proceeding “in which the judge’s impartiality might reasonably be questioned, including but not limited to instances in which: (a) the judge has … personal knowledge of disputed evidentiary facts concerning the proceeding; [or] … (c) the judge knows that the judge … has a financial … or any other interest that could be affected substantially by the outcome of the proceeding.”

If Judge Walker is indeed in a long-term, same-sex relationship, he certainly has an “interest that could be affected substantially by the outcome of the proceeding” – he and his partner are now permitted to marry! – and that, according to Judge Walker’s own finding, has financial benefits as well. Such conflicts would have required recusal, and cannot be waived by the parties.

If the relationship does not create such a conflict, it nevertheless creates the circumstance “in which the judge’s impartiality might reasonably be questioned.” That ground for disqualification can be waived by the parties, but the judge must “disclose on the record the basis of the disqualification” and then only continue after the parties have agreed in writing to his continued involvement. No such disclosure and agreement occurred in this case.

Judge Walker’s failure to disqualify himself or at least to disclose his potentially disqualifying relationship to the parties requires that the opinion in the case be vacated and a new trial conducted before a different judge. … Where an objective observer would have questioned the judge’s impartiality, recusal is required, and the appropriate remedy is to annul the judgment because of the risk of injustice to the parties and of undermining the public’s confidence in the judicial process.

The one sided, dismissive nature of his opinion gives further to enhance the impression of bias.

But let’s indulge in a little conspiratorial thinking. The opinion is so bizarre, so one sided, so obviously contempuous of one side, you might wonder whether this was intentional.

Here’s how the thinking goes. The world was surprised when solid conservative Ted Olson initiated this lawsuit. Some thought that it was a grand tactical move. In reality, Olson was against gay marriages. But he saw a danger: President Obama might appoint enough judges to the Supreme court to tip the balance. If Justice Kennedy were to retire, or any of the other four conservative justices, Obama could install  a liberal majority court.

To head that off, it was imperative that a gay marriage case make it to the Supreme Court while the conservative majority was still in place. That way, the conservatives could rule on the issue, and make clear that the Constitution did NOT require gay marriage. That decision would be locked in as precedent – no court would overrule itself just a few short years after having decided the case. So, by bringing the case, Olson was really insuring that gay marriage would not be the law of the land.

Judge Walker, understanding what was going on, decided to 1) Not recuse himself, which was clearly required and 2) issued a rather bizarre ruling that was sure to be overturned. This would eat up the clock and would almost certainly result in the Supreme Court vacating his ruling, and the whole process would start again. That would take another year or two to get resolved. And maybe in the time being, a conservative justice would retire, and that would put the court back into the hands of the liberals, who would then find a right to gay marriage in the Constitution.

Convoluted, yes. But ever so slightly possible.  Especially considering the bizarre nature of the ruling. The flimsy, contentious “fact” finding, and so forth.

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