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Originally Posted by Tex
Whelan blogs on legal matters at National Review Online, and has made some excellent commentary on Prop 8's legal challenges.
In case you haven't been following the current case, the federal district judge who overturned Prop 8 (Vaughn Walker) recently disclosed that he is in a 10-year same-sex relationship.
This led Prop 8 proponents to file a motion to vacate his ruling based on his failure to recuse and/or failure to disclose this relevant fact before the hearing began.*
Whelan has written several posts on the topic. Here's one that contains links to the others. He's merciless in dissecting Prop 8 opponents. And brilliant.
*Note: the motion to vacate is not based on the fact that Walker is gay. If you're going to comment on the motion, make sure you understand it. Reading the body of Whelan's work would be a good start. |
You know you don't have a very good argument when you take a position suggesting that no matter WHAT a person does,
it is evidence supporting your contention:
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Gillers’s argument is laughably feeble and makeweight. It’s worth noting that what he says of Walker is also true of the plaintiffs in the Prop 8 case: they did not marry in California between May 2008 and November 2008 and they have not married anywhere else. Indeed, Gillers has it backwards: If Walker had entered into a valid same-sex marriage in California between May 2008 and November 2008, that fact would powerfully negate the inference that Walker now hopes to enter into such a marriage (though it might, of course, trigger other bases of recusal). Further, there are plenty of reasons why someone who has made California his permanent residence would want to marry only in California.
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See? Walker SHOULD have gotten married, then we would know he doesn't need to be married and wouldn't be conferring a big benefit on himself anymore! But he didn't. Regardless, we should assume he wants to be married- in California no less because of all the reasons that just make sense.
Care to guess what the analysis would have been if he was married in California? Just read his parenthetical: "it might, of course, trigger other bases of recusal." Yes. Of course. Fine analysis there, sir.
I wonder if you or Whelan would make a similar assumption about a religious adherent who ruled that Prop 8 was constitutional. If, for example, a Mormon judge was assigned the case, should he have been automatically disqualified because his impartiality might reasonably be questioned? How about a Catholic? A Baptist? A non-denominational Christian? How about a person who is married to a female? How about a Republican appointed judge who is married to a female?
Prop 8 proponents are left making these arguments on recusal for a simple reason: the arguments advanced by defendants weren't very good and, consequently, they lost.