WaPo’s ‘Some Experts’ on Judge Walker

It appears “some experts”  believe the challenge to Judge Vaughn Walker’s ability to rule on Proposition 8, now that he’s openly gay, has some legs.  At least that’s what the Washington Post tells us in a breathless start to its page 1 story.  Unfortunately, those “experts” never really show up, or at least get extensively quoted. Instead, we get a lot of people telling us these kinds of challenges never really work.

Here’s the meat of the thesis:

Although unusual, the effort could have legal merit, some experts say. If successful, it could mark the first time a judge has been disqualified or rebuked for issues related to his sexual orientation. And it would be a setback for gay rights groups, which view his opinion on Proposition 8 as one of their most significant victories in the quest for equal rights for same-sex couples.

While it is generally held that judges may not be removed because of their religion or minority status, experts say Proposition 8’s backers have come up with a novel strategy that reignites a complex, emotional debate.

I was intrigued. And I kept waiting for this novel strategy and the experts. Instead, there were 13 or so paragraphs saying that courts don’t accept the argument, that it could have a chilling effect on LGBT judges, and some background on Walker. Finally, seven paragraphs from the end, we get a single expert who calls the approach good because “it ties in Walker’s own words from his ruling about marriage.”

ProtectMarriage.com, in its court filing, argues that Walker had a responsibility to disclose his relationship before the trial.

“It is important to emphasize at the outset that we are not suggesting that a gay or lesbian judge could not sit on this case,” the group’s attorneys said in their motion, which was submitted to the district court. “Rather, our submission is grounded in the fundamental principle, reiterated in the governing statute, that no judge ‘is permitted to try cases where he has an interest in the outcome.’ ”

Arthur D. Hellman, a law professor at the University of Pittsburgh, called it a “very skillfully done document” because it ties in Walker’s own words from his ruling about marriage.

“He himself has said how beneficial marriage is, and having said all that, wouldn’t a reasonable person think that he would want to?” Hellman said.

Now, all of this is very interesting and I really wanted to know whether the challenge to Walker had any hopes. But despite the breathless start, the WaPo article fails to deliver anything close to what it initially offered and we are left to think “some experts” aren’t at all confident of the challenge. I wish the article had told us that from the beginning.

Why sell us all this intrigue when it doesn’t seem to exist?  Why not just write either a straightforward story about the challenge without all the alleged drama and “expert” handwringing?


2 Responses

  1. Hellman does appear from his CV to be an expert on judicial ethics and on the Ninth Circuit; he’s also on the Washington Post’s rolodex,having been quoted recently on the Supreme Court’s reversal of 9th Circuit opinions. With that said, however, the story quotes two other experts of comparable stature as discrediting the recusal motion. It’s remarkable that the 3d paragraph of the story doesn’t make that clear:

  2. I agree, Ken. I don’t disagree that Hellman knows what he’s talking about. I’m actually intrigued by his argument. But he is a single expert–while the article suggested multiple experts–and the other folks have serious doubts about the argument. As you said, it’s remarkable that they sell us a thesis they never really support.

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