Bench Memos

NRO’s home for judicial news and analysis.

Vaughn Walker’s Continued Anti-Prop 8 Cheerleading


In an impressive scoop, Patterico has obtained and published e-mail correspondence between former district judge Vaughn Walker, the trial judge in the Prop 8 case, and a close friend at Ted Olson’s law firm, Gibson Dunn, in which, among other things:

1. Walker asks the friend to “ask Ted [Olson] if he thinks my attending the [Supreme Court] argument [in the Prop 8 case] would be an unwanted distraction”; and

2. the friend passes along Ted Olson’s advice that Walker’s attending “would be a potential distraction,” as “your personal situation”—i.e., Walker’s long-term same-sex relationship—would “likely be … again reported on” and Olson is “discouraging demonstrations or other ‘media events’”; and

3. Walker accepts Ted’s advice, states his confidence that “Ted’s argument will be spectacular,” and invites the friend for “a cup of Christmas cheer” in New York City.

As Patterico puts it (understatedly), the e-mails

suggest a cozy relationship between Walker and Olson that some observers may find revealing. Walker seeks Olson’s opinion regarding attending the argument, defers to Olson’s judgment, and praises Olson’s legal skills. Walker’s demeanor in the emails is that of a well-wisher who wishes to make sure Olson’s argument is not disrupted, rather than that of an impartial former jurist. It is difficult to imagine that Walker sent a similar email to the defenders of Proposition 8, seeking their opinion as to whether it would be appropriate for him to attend.


[T]he behavior of Walker, as revealed by these emails, creates the appearance of a partisan rather than an impartial former jurist who simply believes he issued a correct ruling. Walker was so invested in his ruling that he wanted to watch the appellate courts’ argument himself. He went out of his way to make sure that he consulted with the winning side to help them prevail in the appellate courts. Specifically, he sought to learn whether his attendance at the appellate arguments would be acceptable to the prevailing party — and when told it would not be, he deferred to the prevailing party’s media strategy. All of this, cumulatively, suggests an emotional investment in the outcome of the case. The emails are likely to reinforce the widely held perception among Prop. 8 supporters that Walker was less than impartial in his rulings during the trial.

Walker’s partisan cheerleading will not come as a surprise, of course, to anyone who paid attention to his outlandishly biased course of misconduct in the Prop 8 case. But for the many who haven’t, perhaps it will help awaken them to the fact.

The e-mails also give the impression that they are part of a longer conversation that Walker and the friend had been having about the Prop 8 case. I’d be very interested to discover when that conversation began and what it consisted of. Perhaps Patterico will disclose more e-mails on that score. Or perhaps Gibson Dunn, in the interests of transparency and to dispel any concerns, will see fit to release all e-mail correspondence that Walker has had with Gibson Dunn attorneys since the start of the Prop 8 case.


Subscribe to National Review