Recusal blues.

I agree with you, Mr. Freedman, and Judge Motley. I suspect the reason that the Prop 8 defenders did not move for recusal was not that the recusal issue was settled. I bet that the Prop 8 defenders thought they had the right judge for the case. According to the article in the Times, Judge Walker's nomination to the bench was controversial because he seemed to tolerate discrimination. Indeed,those concerns stalled Judge Walker's nomination for two years.

He was criticized for being a member of a private club that had refused
membership to blacks and women; gay rights advocates also denounced his
representation, as a private lawyer, of the United States Olympic Committee in
its efforts to keep another organization from calling itself the Gay Olympics.

Even assuming that Judge Walker's sexuality was an "open secret", I bet the Prop 8 defenders thought Judge Walker was a good draw for them. They guy belonged to a discriminatory club and had sued gay activists.

There is no question that having an openly gay justice on the Supreme Court would be a big step for gay rights. Statistically speaking, it seems likely that at least one of the previous 111 justices was gay. Having another justice in the closet, if our newest justice is in the closet, isn't really a step backwards, it is just standing still.

The problem with being having a justice, or any public official, in the closet is that the fact they are in the closet suggests that they are afraid of being exposed. That fear, like any fear I suppose, makes them susceptible to pressure from anyone who threatens to expose them. Thus, the decision to stay in the closet, at least in 2010, seems like an excercise in poor judgment.