The latest chapter in the California Proposition 8 marriage saga involved a Motion to Vacate by marriage supporters on the grounds that Chief District Judge Vaughn Walker should have recused himself from the case.  Though Judge Walker's biased approach to the case has been well-documented (see The Prop. 8 Case Charade and Biased Judge on California's Proposition 8 Marriage Case), the motion was finally brought after Walker revealed upon his retirement that he was indeed a homosexual and that he had been in a 10-year homosexual relationship with another man.

Most people can quickly see the conflict of interest in a committed homosexual man having the power to decide whether or not the law should permit him to marry the person with whom he has been in a relationship for ten years.  But Chief Judge James Ware, who was to decide whether or not Judge Walker should have recused himself, is not most people.  So some background on him is most appropriate. 

In 1997, President Bill Clinton nominated Judge Ware to a seat on the U.S. Court of Appeals for the Ninth Circuit.  That's effectively a promotion to a higher court.  Yet Judge Ware's nomination was quickly withdrawn amidst a sensational scandal that would have gotten any other person fired and disgraced.  Judge Ware actually admitted to committing identity theft!  Yes, you read that right. 

Judge James Ware admitted to lying about being the brother of Virgil Ware, a 13-year-old Alabama boy whose racially motivated murder the judge had often used in speeches.  "It was, as [Judge]James Ware told it, the tragedy that made him 'hungry for justice,'" wrote The New York Times.[1] 

In a story by The Birmingham News, the real James Ware said, "Why would he do something like that? ...  It's bad enough what happened, then to have somebody else trying to prosper from it."[2]

In his letter to the White House asking President Clinton to withdraw his nomination, Judge Ware wrote: "Statements made by me in speeches and interviews that I am the James Ware whose brother Virgil was killed in Alabama were not the truth. ... I regret my lack of honesty."[3] 

If you are wondering how in the world this man is still a judge, you are not alone.  And he is the chief judge, if you want to get specific.  True, this is the District Court for the Northern District of California, but is it too much to ask that our judges be honest? 

Well, that might be an obvious qualification to most reasonable people, but again, Judge Ware is not most reasonable people.  

It should be no surprise then that Judge Ware proudly dismissed the notion that any reasonable person could possibly conclude that Judge Walker was not impartial in his adjudication of the homosexual marriage case.

Seriously, can you believe anything this man says? 

According to Title 28, §§ 455(a) of the United States Code: "Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned."  Judge Ware argues that just because someone is a homosexual in a long-term relationship, it is not reasonable to assume that they also want to be married.  So, in his view, Judge Walker does not necessarily gain anything by ruling one way or another. 

Think about that.  In the wacky world of Judge Ware, if a judge is to receive a large sum of money from his adjudication in a trial, we must apparently find out if the judge wants the money before he recuses himself.  If he really doesn't want the money, then Judge Ware would be okay with his presiding over the case.  

The point is that Judge Walker did not have the legal ability to marry; that changed following his ruling.  That's what he is gaining.  Whether or not he takes advantage of the opportunity is immaterial.

In his ruling, Judge Ware discusses other cases involving African-American and female judges to make the parallel to Judge Walker as a homosexual.  But just once, before a judge goes on a diatribe about race and gender in comparison to homosexual behavior, I would like the judge to hear some evidence on the immutability of homosexual behavior.

Just because a judge proclaims something doesn't mean it is true.  And I guess that is especially true in the case of Judge Ware.

Homosexual activists have tried for years to prove the existence of a "gay gene."  So far, the efforts have been unfruitful.  So why is Ware equating race to homosexuality? 

He wouldn't use the race issue for misguided purposes, would he?

Judge Ware also looked at Title 28 U.S.C §§ 455(b)(4), which requires a judge to disqualify himself when: 

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 [emphasis added][.]

Again, the language is pretty clear here that it is an interest that could be affected by the outcome of the case.  But apparently, for Judge Ware, it must be affected for this to apply.  Same thing with Title 28 U.S.C §§ 455(b)(5)(iii) requiring disqualification if:

 He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person ... Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding [emphasis added][.]

Again, nothing to see here.  Don't you realize that there is no proof that Judge Walker and his homosexual partner desire to marry?  This was just another trial for Judge Walker, and he was as impartial as can be.

To that point, we should mention that Judge Ware also heard arguments on a bizarre set of circumstances where Judge Walker, upon retirement, was given "as a parting gift"[4] the videotapes of this trial (that was just like any other trial, remember) so he could use them in post-retirement speeches.  Of the hundreds of cases over which Judge Walker presided, this was the one that they decided to give to him on video. 

Want to guess who made that decision?

"It was done under my auspices," Judge Ware said at the hearings.  "So I want to disclose that in case you wish to make an argument that somehow having presided over that event ... I should recuse myself." 

Of course not.

Mario Diaz, Esq. is the Policy Director for Legal Issues at Concerned Women for America (CWA). Sheila Willamowski is CWA's 2011 Blackstone Fellow Intern.

Notes

[1] Todd S. Purdum, "Judge Says He Lied In Story of a Brother Slain in Bias Attack," New York Times, November 7, 1997, available at http://www.nytimes.com/1997/11/07/us/judge-says-he-lied-in-story-of-a-brother-slain-in-bias-attack.html.

[2] Id.

[3] Reynolds Holding, "Judge's Story of Slain Brother a Lie / Clinton nominee withdraws - not kin of victim of racial killing," San Francisco Chronicle, November 7, 1997, available at http://articles.sfgate.com/1997-11-07/news/17763138_1_confirmation-process-judge-virgil-ware.

[4] The Associated Press, "Judicial Bias is Alleged in a Ruling on Marriage," New York Times, June 13, 2011, available at http://www.nytimes.com/2011/06/14/us/politics/14prop8.html?_r=1.