Diary

Should Recusal Have Been An Option

In 2008, the citizens of California casts their votes for a constitutional amendment and ballot proposition. This action passed in the state elections called for recognizing only the marriage between a man and a woman to be valid in the state of California.
As cases of this volatility go, opponents were sure to seek judicial review and that is exactly what happened. In August 2010, U.S. District Court Chief Judge Vaughn R. Walker, after a 12 day trial, ruled against proposition 8. Was it over? Not by any means. Judge Walker, as it turns out, has been in a long-term relationship with a man for 10 years. Perhaps Judge Walker should have recused himself from hearing and ruling on the case in 2010. Judge Walker left the bench in February 2011 and now proponents of Prop 8 are back in court and are asking Walker’s replacement, U.S. District Court Chief Judge James Ware to set aside Walker’s ruling because of possible impartiality.
According to an article from the Justice System Journal regarding judicial recusal:
“The federal judicial disqualification statute, 28 U.S.C. 455, creates two categories of recusal. In the first, 455(a), judges must disqualify themselves whenever their “impartiality might reasonably be questioned,” or what some refer to as “the appearance of impropriety.” Inquiry under this provision does not turn on the subjective opinion of the judge but rather on an objective determination as to whether a reasonably knowledgeable person would find cause to question the judge’s impartiality. The second category of recusal, 455(b), contains specifically articulated situations where recusal is required, such as when the judge, or a former lawyer with whom the judge previously worked, served as a lawyer to a client in the “matter in controversy.”
As I understand it, federal judges can decide on their own if they should disqualify themselves from hearing a case. Now that is flaunting the power. Perhaps a second judge should be responsible for ruling on a recusal motion. No matter. According to the above statute, Judge Walker should have recused on this case.