The motion has provoked howls of outrage from liberals. Here, for example, is Erwin Chemerinsky, Dean of the Cal-Irvine Law School and a highly respected legal scholar:
"‘This is an offensive personal attack on Vaughn Walker,’ Chemerinsky said. He likened the legal maneuver to an argument that black judges cannot decide race discrimination cases or female judges preside over cases involving sex bias.”I’m an ardent supporter of the legal recognition of same-sex marriages and a longstanding admirer of Chemerinsky’s legal acumen. But I have to say that, as far as I can see, he’s not only missing the point, but missing it by a country mile.
The motion to vacate the Prop. 8 judgment doesn’t turn on any notion that being gay disables a judge from presiding fairly over a trial involving allegations of bias against gays. What matters, legally speaking, is the allegation that Judge Walker had an immediate, and undisclosed, interest in the outcome of the case over which he was presiding. Indeed, on the facts alleged, he could have had as much legal standing to bring the suit as the actual plaintiffs appearing before him. It all depends on how close he and his prospective spouse would have been at the time of trial to tying the knot if they could.
Suppose person X brings a nuisance suit against his next-door neighbor, person Y, because the stench from the pigs Y is keeping on his property is disturbing X’s quiet enjoyment of his own property. That may or not be a meritorious lawsuit. But it would never occur to anyone that Judge Z, Y’s next-door neighbor on the other side who can’t help smelling the same odors, has any business presiding over the trial. In that case, it would be legally mandatory for Judge Z to recuse himself from the action.
Assuming that the facts about Judge Walker alleged are true, I don’t see any way around the conclusion that his presiding over the Prop. 8 trial presented an analogous situation. Moreover, the legal problem is compounded by the fact that, owing to some controversial legal rulings of his own, Judge Walker presided over a bench trial in which he served as the finder of fact, and then based his ruling respecting what most people always thought of as purely legal questions on his own factual findings.
Unless I’m missing something--and I may well be because I haven't yet gotten hold of the pleadings--the moving parties have a shot at winning their motion to vacate. But I'm pretty sure, in any case, that it isn't a legally frivolous motion--indeed, it looks to me like it would have been malpractice for the anti-same-sex lawyers not to urge their clients to make it.