The proponents of Prop 8 sought to have Judge Vaughn Walker disqualified from ruling in the Prop 8 case. They argued that he had a substantial interest in the case because he was in an (undisclosed) long-term same-sex relationship and might seek to marry if SSM were permitted in California. Opinions in the blog commentariat vary, but most legal ethics experts seem to think Walker was not required to recuse himself and should not have been disqualified. My colleague Richard Painter believes the motion to disqualify Walker and vacate the judgment was frivolous, though he questions the merits of Walker’s ruling for SSM.
Today, Chief Judge James Ware denied the motion. Judge Ware writes: “The sole fact that a federal judge shares the same circumstances or personal characteristics with other members of the general public, and that the judge could be affected by the outcome of a proceeding in the same way that other members of the general public would be affected, is not a basis for recusal or disqualification under [federal law].” He also warns that requiring Judge Walker to disclose his relationship would set a harmful precedent, promoting the disclosure of “highly personal information (e.g., information about a judge’s history of being sexually abused as a child), however irrelevant or time-consuming.” Finally, he argues that Judge Walker should no more be presumed to be incapable of rendering an impartial decision than a female judge should be presumed biased in a case in which women seek legal relief. Let the avalanche of analogies and counter-analogies begin!
The supporters of Prop 8 will appeal Judge Ware’s decision.
UPDATE: NRO’s Ed Whelan has a trenchant critique of Ware’s decision here and here.