Bench Memos

NRO’s home for judicial news and analysis.

This Day In Liberal Judicial Activism—January 4


 2010—Eager to broadcast his show trial against Proposition 8 and traditional marriage, Chief Judge Vaughn Walker undertakes his third inept and illegal effort—all within the space of two weeks—to amend the local rule that bars televising of trial proceedings. Days after setting a ridiculously short period for public comment on a “proposed” revision of the local rule, Walker now purports to have amended the rule “effective December 22, 2009,” “pursuant to the ‘immediate need’ provision” of the governing federal statute. Two days later, Walker will authorize broadcast of the trial via YouTube.

But on January 13, the Supreme Court will block Walker’s broadcasting order and rule that his purported revision of the local rule was unlawful. Walker’s desire to broadcast the anti-Prop 8 trial “does not qualify as an immediate need that justifies dispensing with the notice and comment procedures required by federal law,” the Court states. Further, even if the rule had been validly revised, the anti-Prop 8 trial, given the risks of harassment of witnesses, would not be “a good one for a pilot program.” The Court rebukes Walker for “attempt[ing] to change its rules at the eleventh hour to treat this case differently than other trials in the district.”

2011—Might a judge’s impartiality reasonably be questioned when that judge takes part in reviewing the decision in a case in which his wife consulted with plaintiffs’ counsel about the very decision to file the lawsuit; in which his wife authorized the ideological organization that she heads—and that has vaunted its “lead role” on the broader ideological cause at issue—to file amicus briefs supporting plaintiffs in the trial proceedings; and in which his wife publicly celebrated the very ruling that her husband is now reviewing?

One month after immediately denying a recusal motion in the Proposition 8 appeal that rested on these facts, Ninth Circuit judge Stephen Reinhardt issues a memorandum that purports to explain his decision but that is instead an utterly unpersuasive exercise in obfuscation and gimmickry. Among other things, Reinhardt mischaracterizes the motion in order to misplay the feminist card, refuses to acknowledge established facts, strains to minimize others, and misapplies Supreme Court precedent. 


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