Since Judge Vaughn Walker, the federal judge who struck down California's ban on same sex marriage, disclosed that he is gay and in a long-term relationship members of the right-wing media have revived their campaign to have Walker disqualified from the case. Their campaign has culminated in a motion filed by opponents of same-sex marriage to vacate Walker's same-sex marriage ruling.
National Review Online blogger Ed Whelan has claimed that the motion to vacate Walker's ruling "elaborates the argument" he himself has made about why Walker should be disqualified from the case.
But several judicial ethicists agree that the arguments for why Walker should be disqualified from the case do not stand up to scrutiny.
Samford University's Cumberland School of Law Professor William G. Ross stated in a phone call with Media Matters that based on the arguments put forward by the opponents of same-sex marriage, "a reasonable person wouldn't believe [Walker] was biased."
New York University Law Professor Stephen Gillers stated in an e-mail that "[t]he fact that Walker is gay standing alone is not a basis for recusal. The fact that he is in a long term relationship with another man also is not by itself a basis for recusal."
Hofstra University Law Professor Monroe H. Freedman stated in a phone call that "simply being gay and in a gay relationship" is not a reason for recusal.
In addition, the Associated Press reported:
DePaul University College of Law professor Jeffrey Shaman, co-author of a widely used textbook on judicial conduct, said the fact that Walker was rumored to be gay from the moment he randomly drew the Proposition 8 case "somewhat undercuts the argument that he should have disclosed he was in a long-term relationship."
Lawyers for backers of the ban seem to be grasping at straws in making their argument against the now-retired Walker, Shaman said.
"But it's their prerogative to do this as lawyers," Shaman said. "It might indicate they are worried about the judge's opinion, which was such a strong opinion, and they are trying to make an end run around it."
Another right-wing blogger has taken a stab at arguing that Judge Vaughn Walker should have been disqualified from the California same-sex marriage case because he is a gay man. But the post accidentally showed another reason why this argument has been deemed meritless and "ridiculous" by judicial ethics experts.
The blogger (presumably accidentally) argues that not only should Walker be disqualified from this case, but women judges must be disqualified from cases involving abortion.
Last night, as part of a series of National Review Online posts calling for Walker's disqualification, Matthew Franck hyped a guest post on the Patterico's Pontifications blog attacking Walker. The Patterico post, by Aaron Worthing, detailed an email exchange Worthing had had with San Francisco Chronicle reporter Bob Egelko about Walker.
In response to Egelko's remark that Walker "has no more of a conflict than a female judge, or a devoutly Catholic male judge, ruling on the right to abortion," Worthing stated: "[N]otice he also misses the issue of having your legal rights on the docket. A catholic male judge might have a certain preferred outcome in an abortion case, but he is not ruling on his personal rights."
Worthing responded to Egelko's analogy about a "devoutly Catholic male judge" ruling on abortion, but not about a "female judge" ruling on that issue.
I don't know why Worthing did not respond to the point about a "female judge," but a woman of childbearing age certainly has her own "legal rights on the docket" when ruling on abortion restrictions, and by the logic of Walker opponents, cannot hear such cases.
As we've already shown, by the logic of Walker's opponents, straight judges who are married or may someday want to get married must be disqualified from same-sex marriage cases. But now it's apparent that, in addition, female judges are disqualified from hearing abortion cases.
Or perhaps the real answer is that there are no grounds to disqualify Walker from the Proposition 8 case.
National Review Online blogger Matthew J. Franck published a guest blog post by Southern Illinois University professor Robert Clinton arguing that by supporting Roe v. Wade, "the strongest elements of the Democratic Party" belong to the "Party of Death." Comparing Roe to the notorious Supreme Court Dred Scott decision, Clinton added: "we seem to be approaching a situation of the kind that obtained shortly before the Civil War, in which a flawed Supreme Court decision was followed by an unbridgeable congressional divide and governmental paralysis."
While Clinton stated that he "would hardly venture so far as to predict another civil war," he then added: "the circumstances and the history cannot help but give one pause."
From a post on the National Review Online's Bench Memos blog:
The fact that the budget dispute resolved last night, threatening a partial shutdown of the national government, came down to the funding of Planned Parenthood, is a striking confirmation of Ramesh Ponnuru's description of the strongest elements of the Democratic Party as belonging to the "Party of Death."
If the decision whether to keep the government functioning at full strength boils down to resolution of a controversy over abortion, then we seem to be approaching a situation of the kind that obtained shortly before the Civil War, in which a flawed Supreme Court decision was followed by an unbridgeable congressional divide and governmental paralysis. As Hadley Arkes suggested around the time of the Bork hearings, Dred Scott and Roe are cut from the same cloth. While I would hardly venture so far as to predict another civil war, the circumstances and the history cannot help but give one pause.