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txradioguy
04-19-2011, 10:44 AM
Two weeks ago, former federal district judge Vaughn Walker, who ruled last summer in Perry v. Schwarzenegger that California’s Proposition 8 is unconstitutional, publicly disclosed for the first time that he has been in a same-sex relationship for the past ten years. A straightforward application of the judicial ethics rules compels the conclusion that Walker should have recused himself from taking part in the Perry case. Further, under well-established Supreme Court precedent, the remedy of vacating Walker’s judgment is timely and necessary.

Let’s begin with the relevant facts that bear on the recusal question.

According to his recent disclosure, Walker has been in a relationship with the same man for the past ten years. Walker and his partner evidently live in the San Francisco area.

The complaint in Perry, filed in May 2009, sought a permanent injunction against “all enforcement of Prop. 8.” Among other things, the plaintiffs alleged that the “inability to marry denies gay and lesbian individuals and their children the personal and public affirmation that accompanies marriage.” They further alleged that they, as “gay and lesbian residents of California who are involved in long-term serious relationships with individuals of the same sex and desire to marry those individuals,” had suffered “significant hardship” from Proposition 8, “including but not limited to the deprivation of rights guaranteed by the Fourteenth Amendment and severe humiliation, emotional distress, pain, suffering, psychological harm, and stigma.”
In August 2010, Judge Walker ruled that Proposition 8 “is unconstitutional under both the Due Process and Equal Protection Clauses,” and he ordered “entry of judgment permanently enjoining its enforcement [and] prohibiting the official defendants” — including California’s governor, attorney general, and the state officials “responsible for prescribing and furnishing the forms for marriage license applications, the certificate of registry of marriage, including the license to marry, and the marriage certificate” — “from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8.”

Among the findings of fact that Walker offered in support of his ruling were that “Proposition 8 increases costs and decreases wealth for same-sex couples,” that marriage “benefits both spouses by promoting physical and psychological health,” that “marriage is widely regarded as the definitive expression of love and commitment in the United States,” and that “Proposition 8 places the force of law behind stigmas against gays and lesbians.”

Now let’s consider how those facts apply under federal recusal law:

Section 455(a) of Title 28 of the United States Code requires that a federal judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” As explained by a publication of the Federal Judicial Center, Judicial Disqualification: An Analysis of Federal Law (2d ed. 2010), section 455(a) makes “clear that judges should apply an objective standard in determining whether to disqualify”:


A judge contemplating disqualification under § 455(a), then, should not ask whether he or she believes he or she is capable of impartially presiding over the case. Rather, the question is whether a judge’s impartiality might be questioned from the perspective of a reasonable person, and every circuit has adopted some version of the ‘reasonable person’ standard to answer this question.

In adopting this objective standard, section 455(a) “obviates making subjective judgment calls about what is actually going on inside a judge’s heart and mind.”

http://www.nationalreview.com/articles/265066/disclosure-delayed-justice-denied-ed-whelan

Novaheart
04-19-2011, 12:37 PM
Walker's sexual orientation was known from the start. Must be a slow week at National Review but just shows the true utility of gay rights issues to the right wing: to get the monkeys yakking.


appointed by George Bush, btw.

Novaheart
04-19-2011, 12:41 PM
This is too funny.

Mr. Whelan, a lawyer and a former law clerk to Supreme Court Justice Antonin Scalia

So here you have a clerk to the Pope's lackey saying that a judge should have recused himself because he's gay. LOL

Bailey
04-19-2011, 12:44 PM
Walker's sexual orientation was known from the start. Must be a slow week at National Review but just shows the true utility of gay rights issues to the right wing: to get the monkeys yakking.


appointed by George Bush, btw.

Listen fag boy I dont give a shit if Bush appointed the pervert or not, just goes to show a decent man can make mistakes.

txradioguy
04-19-2011, 12:56 PM
This is too funny.

Mr. Whelan, a lawyer and a former law clerk to Supreme Court Justice Antonin Scalia

So?


So here you have a clerk to the Pope's lackey saying that a judge should have recused himself because he's gay. LOL

Strawman.

txradioguy
04-19-2011, 12:57 PM
Walker's sexual orientation was known from the start. Must be a slow week at National Review but just shows the true utility of gay rights issues to the right wing: to get the monkeys yakking.


appointed by George Bush, btw.


And any of this changes the fact he acted improperly how???

Pulpfishin
04-19-2011, 01:15 PM
had suffered “significant hardship” from Proposition 8, “including but not limited to .....severe humiliation, emotional distress, pain, suffering, psychological harm, and stigma.”

severe humiliation - Please explain gay pride parades then.

emotional distress - Butch up Nancy boy

pain - This one I can relate to, my first visit to a proctologist was not much fun

suffering - please feel free to end it yourself

psychological harm - pre-existing condition

stigma - once again, gay pride parades..... don't paint a target on yourself and then bitch about it!


Whiny little fags.

Novaheart
04-19-2011, 01:16 PM
And any of this changes the fact he acted improperly how???

He didn't act improperly.

Novaheart
04-19-2011, 01:17 PM
severe humiliation - Please explain gay pride parades then.

emotional distress - Butch up Nancy boy

pain - This one I can relate to, my first visit to a proctologist was not much fun

suffering - please feel free to end it yourself

psychological harm - pre-existing condition

stigma - once again, gay pride parades..... don't paint a target on yourself and then bitch about it!


Whiny little fags.

Aww, you brought your sock puppet with you. How cute.

txradioguy
04-19-2011, 01:27 PM
He didn't act improperly.

According the law he did. He should have...according to regulations recused himself from the case.

He had a vested personal interest in the outcome. He was unable to render an impartial decision on the case before him because he stood to gain from it in his personal life.

The section of the legal canons that say he should have recused himself are right there in the article.

Your bias on this is as bad as the judge's.

Pulpfishin
04-19-2011, 01:30 PM
Aww, you brought your sock puppet with you. How cute.

What's the problem, this topic striking a little too close to home Mr. Garrison?

http://www.southparkstudios.se/clips/sp_vid_152303/

txradioguy
04-19-2011, 01:40 PM
He didn't act improperly.

Oh but he did.


In taking part in the Perry case, Judge Walker was deciding whether Proposition 8 would bar him and his same-sex partner from marrying. Whether Walker had any subjective interest in marrying his same-sex partner — a matter on which Walker hasn’t spoken — is immaterial under section 455(a). (If Walker did have such an interest, his recusal also would be required by other rules requiring that a judge disqualify himself when he knows that he has an “interest that could be substantially affected by the outcome of the proceeding.”)

The law is the law. And he crossed the line.


Amazing how you're willing to look the other way on recusal and lack of impartiality in the legal system when it's one of your pet lefty topics.

Novaheart
04-19-2011, 01:48 PM
According the law he did. .

No, according to Edward Whelan he did.


A

Your bias on this is as bad as the judge's.

So tell me which judges need to recuse themselves in a Second Amendment case. The ones who own guns or the ones who don't? The ones who concealed carry or the ones who don't? The ones who hunt or the ones who don't?

Should former members of the military recuse themselves from all cases involving soldiers?

How could the Supreme Court hear a Ku Klux Klan case with three Jews, a Catholic and a black guy who ought to recuse by your reasoning?

Bailey
04-19-2011, 01:50 PM
No, according to Edward Whelan he did.



So tell me which judges need to recuse themselves in a Second Amendment case. The ones who own guns or the ones who don't? The ones who concealed carry or the ones who don't? The ones who hunt or the ones who don't?

Should former members of the military recuse themselves from all cases involving soldiers?

How could the Supreme Court hear a Ku Klux Klan case with three Jews, a Catholic and a black guy who ought to recuse by your reasoning?

Does he or doesn't he gain something from the case? if he does fag boy he should (if he had any honor) recuse himself but perverts will do almost anything to advance their agenda.

txradioguy
04-19-2011, 01:55 PM
No, according to Edward Whelan he did.

Wrong again. This says he did:

Judicial Disqualification: An Analysis of Federal Law (2d ed. 2010)

http://www.fjc.gov/public/pdf.nsf/lookup/judicialdq.pdf/$file/judicialdq.pdf



So tell me which judges need to recuse themselves in a Second Amendment case. The ones who own guns or the ones who don't? The ones who concealed carry or the ones who don't? The ones who hunt or the ones who don't?

Red herring.


Should former members of the military recuse themselves from all cases involving soldiers?

Strawman


How could the Supreme Court hear a Ku Klux Klan case with three Jews, a Catholic and a black guy who ought to recuse by your reasoning?

:rolleyes:

You got anything intelligent to add to this or even make a credible defense of this judge and his improper actions? Or are you just going to keep flailing?

txradioguy
04-19-2011, 01:58 PM
Does he or doesn't he gain something from the case? if he does fag boy he should (if he had any honor) recuse himself but perverts will do almost anything to advance their agenda.

No worries. Now that this has come to light his ruling will be vacated and the will of the people of California who voted in favor of Prop 8 will be restored.

Novaheart
04-19-2011, 02:05 PM
No worries. Now that this has come to light his ruling will be vacated and the will of the people of California who voted in favor of Prop 8 will be restored.

This hasn't "come to light", his sexual orientation was well known and openly discussed at the time. The ruling will not be vacated because of this article. You're such a dupe sometimes.

The National Review hasn't caught him or discovered anything here, it's simply that Judge Walker retired and is talking about cases.

BTW, he represented the US Olympic Committee against the Gay Olympics for trademark, and won against the Gay Olympics which is now known as the Gay Games.

Novaheart
04-19-2011, 02:06 PM
Red herring.



Strawman



:rolleyes:

AKA logic.

txradioguy
04-19-2011, 02:09 PM
I'll give this more of an intelligent reply than Nova is capable of.

No one is saying that a gay man can't decide on issues involving other homosexuals.

The impropriety comes form the fact he failed to disclose issues that could potentially affect his decision or decision making process before he heard the case. Things that could have allowed others to decide if he was capable of being impartial in ruling on the case.

Instead he chose to hide them which opens the door to justifiable criticism of whether or not he was able to give the case a fair hearing.


The judge ruled that barring gay marriage presents a financial hardship to gay couples. In removing that alleged hardship...he and his partner benefit.

He stood to gain from his own ruling. Thus he should have...had be been truly impartial and unbiased...not to mention truthful...removed himself from the case.

If a judge in W. Texas was hearing an imminent domain case between an Oil Company and a person who held mineral rights to a piece of land the oil company wanted...and the judge ruled in favor of the oil company...and it later turned out that the judge...because of his ruling...gained financially from stock he held in that oil company that he failed to disclose prior to the start of the case...he'd be just as ethically wrong in not recusing himself from the case as this judge is.

txradioguy
04-19-2011, 02:10 PM
AKA logic.

You and logic haven't been on speaking terms for quite a few decades.

txradioguy
04-19-2011, 02:12 PM
This hasn't "come to light", his sexual orientation was well known and openly discussed at the time. The ruling will not be vacated because of this article. You're such a dupe sometimes.

Really when?


The National Review hasn't caught him or discovered anything here, it's simply that Judge Walker retired and is talking about cases.

He's talking about things now that improperly affected cases he heard in his court. Bragging about misconduct.


BTW, he represented the US Olympic Committee against the Gay Olympics for trademark, and won against the Gay Olympics which is now known as the Gay Games.

So? We're supposed to give him a pass on improper conduct because of that?

Talk about being a dupe.

txradioguy
04-19-2011, 02:22 PM
28 U.S.C. § 455 : US Code - Section 455: Disqualification of justice, judge, or magistrate judge


(a) Any justice, judge, or magistrate judge of the United States
shall disqualify himself in any proceeding in which his
impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following
circumstances:
(1) Where he has a personal bias or prejudice concerning a
party, or personal knowledge of disputed evidentiary facts
concerning the proceeding;
(2) Where in private practice he served as lawyer in the matter
in controversy, or a lawyer with whom he previously practiced law
served during such association as a lawyer concerning the matter,
or the judge or such lawyer has been a material witness
concerning it;
(3) Where he has served in governmental employment and in such
capacity participated as counsel, adviser or material witness
concerning the proceeding or expressed an opinion concerning the
merits of the particular case in controversy;
(4) He knows that he, individually or as a fiduciary, or his
spouse or minor child residing in his household, has a financial
interest in the subject matter in controversy or in a party to
the proceeding, or any other interest that could be substantially
affected by the outcome of the proceeding;
(5) He or his spouse, or a person within the third degree of
relationship to either of them, or the spouse of such a person:
(i) Is a party to the proceeding, or an officer, director, or
trustee of a party;
(ii) Is acting as a lawyer in the proceeding;
(iii) Is known by the judge to have an interest that could be
substantially affected by the outcome of the proceeding;
(iv) Is to the judge's knowledge likely to be a material
witness in the proceeding.
(c) A judge should inform himself about his personal and
fiduciary financial interests, and make a reasonable effort to
inform himself about the personal financial interests of his spouse
and minor children residing in his household.
(d) For the purposes of this section the following words or
phrases shall have the meaning indicated:
(1) "proceeding" includes pretrial, trial, appellate review, or
other stages of litigation;
(2) the degree of relationship is calculated according to the
civil law system;
(3) "fiduciary" includes such relationships as executor,
administrator, trustee, and guardian;
(4) "financial interest" means ownership of a legal or
equitable interest, however small, or a relationship as director,
adviser, or other active participant in the affairs of a party,
except that:
(i) Ownership in a mutual or common investment fund that
holds securities is not a "financial interest" in such
securities unless the judge participates in the management of
the fund;
(ii) An office in an educational, religious, charitable,
fraternal, or civic organization is not a "financial interest"
in securities held by the organization;
(iii) The proprietary interest of a policyholder in a mutual
insurance company, of a depositor in a mutual savings
association, or a similar proprietary interest, is a "financial
interest" in the organization only if the outcome of the
proceeding could substantially affect the value of the
interest;
(iv) Ownership of government securities is a "financial
interest" in the issuer only if the outcome of the proceeding
could substantially affect the value of the securities.
(e) No justice, judge, or magistrate judge shall accept from the
parties to the proceeding a waiver of any ground for
disqualification enumerated in subsection (b). Where the ground for
disqualification arises only under subsection (a), waiver may be
accepted provided it is preceded by a full disclosure on the record
of the basis for disqualification.
(f) Notwithstanding the preceding provisions of this section, if
any justice, judge, magistrate judge, or bankruptcy judge to whom a
matter has been assigned would be disqualified, after substantial
judicial time has been devoted to the matter, because of the
appearance or discovery, after the matter was assigned to him or
her, that he or she individually or as a fiduciary, or his or her
spouse or minor child residing in his or her household, has a
financial interest in a party (other than an interest that could be
substantially affected by the outcome), disqualification is not
required if the justice, judge, magistrate judge, bankruptcy judge,
spouse or minor child, as the case may be, divests himself or
herself of the interest that provides the grounds for the
disqualification.


http://codes.lp.findlaw.com/uscode/28/I/21/455

Novaheart
04-19-2011, 02:25 PM
You and logic haven't been on speaking terms for quite a few decades.

Sherillyn Ifill mines the history of recusal motions filed before African-American judges:
In the late 1970s and early 1980s -- as a bumper crop of minority federal district judges appointed by President Jimmy Carter presided over employment-discrimination cases brought under Title VII of the Civil Rights Act of 1964 -- recusal motions were filed by defendants seeking to remove black judges from hearing these cases. Black judges pushed back firmly against attempts to question their impartiality and framed what has become the universally accepted understanding among the bench and bar: that judicial bias cannot be assumed based on the racial, gender or other status of the judge.
In perhaps the most famous of these cases, lawyers representing the New York law firm of Sullivan & Cromwell requested that federal district judge Constance Baker Motley recuse herself from hearing a case brought by women lawyers at the firm who charged discrimination in hiring and promotion. The law firm's motion for recusal was based on Judge Motley's status as a black woman and her professional experience as a former civil rights lawyer.... Motley refused to withdraw from presiding over the case, offering the now classic explanation that "if background or sex or race of each judge were, by definition, sufficient grounds for removal, no judge on this court could hear this case, or many others, by virtue of the fact that all of them were attorneys, of a sex, often with distinguished law firm or public service backgrounds."

txradioguy
04-19-2011, 02:28 PM
Sherillyn Ifill mines the history of recusal motions filed before African-American judges:
In the late 1970s and early 1980s -- as a bumper crop of minority federal district judges appointed by President Jimmy Carter presided over employment-discrimination cases brought under Title VII of the Civil Rights Act of 1964 -- recusal motions were filed by defendants seeking to remove black judges from hearing these cases. Black judges pushed back firmly against attempts to question their impartiality and framed what has become the universally accepted understanding among the bench and bar: that judicial bias cannot be assumed based on the racial, gender or other status of the judge.
In perhaps the most famous of these cases, lawyers representing the New York law firm of Sullivan & Cromwell requested that federal district judge Constance Baker Motley recuse herself from hearing a case brought by women lawyers at the firm who charged discrimination in hiring and promotion. The law firm's motion for recusal was based on Judge Motley's status as a black woman and her professional experience as a former civil rights lawyer.... Motley refused to withdraw from presiding over the case, offering the now classic explanation that "if background or sex or race of each judge were, by definition, sufficient grounds for removal, no judge on this court could hear this case, or many others, by virtue of the fact that all of them were attorneys, of a sex, often with distinguished law firm or public service backgrounds."

Yup and here we go...:rolleyes:

Zathras
04-19-2011, 02:43 PM
AKA logic.

And if you were actually using logic we might take you seriously. But, since you're not....

Madisonian
04-19-2011, 07:22 PM
Lets see here...
Country over 14 trillion in debt and rising.
Politicians in both parties selling out to corporostatism.
Illegal aliens swarming over the borders.
Islamofacists wanting to kill everybody including themselves.
3 military actions to keep one group of muslims from killing another group of muslims, which they will do eventually anyway.
Schools that don't teach.
Government workers, union or otherwise, that want more money for less work.
Cities, states and local governments that can't fund fire or police services.

And I am concerned that some gay judge that everyone knew was gay overturned a vote to define marriage as only between a man and a woman when the government has no business being involved anyway?

Not even in the top 50.

MrsSmith
04-19-2011, 09:49 PM
No, according to Edward Whelan he did.



So tell me which judges need to recuse themselves in a Second Amendment case. The ones who own guns or the ones who don't? The ones who concealed carry or the ones who don't? The ones who hunt or the ones who don't?

The ones that stand to make a financial gain from their own decision. Duh...


Should former members of the military recuse themselves from all cases involving soldiers?

If they will make a financial gain from the decision, yes.


How could the Supreme Court hear a Ku Klux Klan case with three Jews, a Catholic and a black guy who ought to recuse by your reasoning?

This one makes no sense at all. :rolleyes: