Bench Memos

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Judge Walker’s Anti-Prop 8 Sham Trial


Any day now, federal district judge Vaughn Walker may issue his ruling inventing a federal constitutional right to same-sex marriage and invalidating California’s Proposition 8.  This is a good time to highlight what an utter sham Walker’s handling of the case has been—and to call attention to one new reported fact that may add to the already overwhelming evidence that Walker should have recused himself from the case.

Walker’s entire course of conduct in the anti-Prop 8 case has reflected a manifest design to turn the lawsuit into a high-profile, culture-transforming, history-making, Scopes-style show trial of Prop 8’s sponsors.  Walker’s actions, taken together, have only one sensible explanation:  that Walker has been hellbent from the outset to use the case to advance the cause of same-sex marriage.

Let’s start with Walker’s initial case-management conference when he determined, to the surprise even of plaintiffs’ lawyer Ted Olson, that the case couldn’t be resolved, one way or the other (as other courts have done in similar cases), as a matter of law but would instead require extensive discovery into supposed factual issues.. 

Take Walker’s insane and unworkable inquiry into the subjective motivations of the more than seven million Californians who voted in support of Prop 8. 

Take the incredibly intrusive discovery, grossly underprotective of First Amendment associational rights, that Walker authorized into the internal communications of the Prop 8 sponsors.  That ruling was overturned, in part, by an extraordinary writ of mandamus issued by a Ninth Circuit panel consisting entirely of Clinton appointees.  But the portion that survived enabled plaintiffs to conduct scorched-earth discovery that leveraged the massive resource advantage provided by their lavish Hollywood backers.  And the sweeping judicial invasion of the core political speech rights and associational rights of Prop 8 supporters had the added benefit, from Walker’s perspective, of intimidating opponents of same-sex marriage from ever daring to exercise those rights again.

Take Walker’s resort to procedural shenanigans and outright illegality in support of his fervent desire to broadcast the trial, in utter disregard of (if not affirmatively welcoming) the harassment and abuse that pro-Prop 8 witnesses would reasonably anticipate.  Walker’s decision was ultimately blocked by an extraordinary (and fully warranted) stay order by the Supreme Court in an opinion that was plainly a stinging rebuke of Walker’s lack of impartiality. 

Take Walker’s permitting a parade of anti-Prop 8 witnesses at trial who gave lengthy testimony that had no conceivable bearing on any factual or legal issues in dispute but who provided useful theater for the anti-Prop 8 cause.  And—surprise, surprise—every single one of plaintiffs’ “expert” witnesses is an activist for same-sex marriage whose “expert” testimony was just a repackaging of their political advocacy.

As I explained in early February when a San Francisco newspaper reported that Walker himself is gay:

In terms of his judicial performance in the anti-Proposition 8 case, the bottom-line question that matters isn’t whether Walker is straight or gay. It’s whether he is capable of ruling impartially. I have no reason to doubt that there are homosexuals who could preside impartially over this case, just as I have no reason to doubt that there are heterosexuals whose bias in favor of, or against, same-sex marriage would unduly skew their handling of the case.

As I concluded then, Walker should have recused himself from the case not because he is gay but because his entire course of conduct demonstrates his manifest inability to be impartial in this matter.

Well, it turns out that there’s yet another reported fact that bears on the already overwhelming case for Walker’s recusal.  According to a Los Angeles Times article from three weeks ago, Walker’s colleagues say that Walker “attends bar functions with a companion, a physician.”  The apparent implication is that Walker has a regular male partner and may be in a long-term relationship.  If that’s so, then the question arises whether Walker himself has any interest in entering into a same-sex marriage in California.  If he does, then the provisions of federal law requiring that a judge recuse himself when he knows that he has “any other interest [other than financial, that is] that could be substantially affected by the outcome of the proceeding” (28 U.S.C. § 455(b)(4)) or when “his impartiality might reasonably be questioned” (28 U.S.C. § 455(a)) may well have been triggered.


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