Bench Memos

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Dear Chief Judge Walker …


A follow-up to my NRO essay today on judge Vaughn Walker’s most recent escapades in the show trial that he is engineering on Proposition 8:  It turns out that the U.S. District Court for the Northern District of California won’t accept public comments on Judge Walker’s New Year’s Eve notice other than by mail.  So that means that any member of the public who wasn’t monitoring the court’s website on New Year’s Eve and who has learned only today of the notice had better draft his comments quickly and get them in the mail soon (or pay hefty overnight charges) if he wants them to arrive by the deadline of this coming Friday, January 8.  What a farcical implementation of the notice-and-public-comment requirements of 28 U.S.C. § 2071(b).

Fortunately, I’ve found time to compose my own comments on Judge Walker’s notice.  Below is the body of the letter that I’m sending today to Judge Walker. 

If you’ve read my essay, the only part of the letter that will be new to you is the discussion in the last paragraph of Judge Walker’s obligation to disqualify himself from further participation in the Proposition 8 case.


Dear Chief Judge Walker:

I am writing to provide comments on your proposed revision of Civil Local Rule 77-3.  As requested in your notice, I am also sending these comments to Judge Hamilton.

It is obvious that your proposed revision, in both its substance and its timing, is driven by your eagerness to authorize televising of the impending trial in the Proposition 8 case, Perry v. Schwarzenegger.  First, you violated federal law by purporting, on December 22, 2009, to amend Local Rule 77-3 without having provided the requisite notice and comment period under 28 U.S.C. § 2071(b).  Then, when your violation of law was discovered, you rushed to post a notice on New Year’s Eve that establishes a ridiculously short period for public comment—ending the Friday before the trial is set to begin.  The short period that you established defeats the purpose of section 2071(b).

The substance of your proposed rule, insofar as it is crafted to enable it to apply to Perry v. Schwarzenegger, is indefensible.  The longstanding policy of the Judicial Conference of the United States opposes all broadcasting of civil and criminal cases in federal district courts.  The concerns that animate that policy—including the threat of intimidation of witnesses and litigants—are especially present in the Perry case, as the December 28, 2009, letter from counsel for Defendant-Intervenors makes clear.

I will not address here the curious announcement on December 17, 2009, of the Ninth Circuit’s pilot program.  Suffice it to say that the selection of cases for a pilot program ought to involve, at a minimum, addressing the following questions:

1.  Does any party object to televised proceedings?
2.  Is there any reason to believe that televised proceedings might increase the risk that trial participants would face intimidation, harassment, or abuse?
3.  Is there any reason to believe that that televised proceedings might create a risk that trial participants, including the judge, would engage in grandstanding behavior?

Only in cases in which the answer to all three questions is NO would it make sense to consider further the possibility of participation in the pilot program.  By contrast, in Perry, the answer to all three questions is YES.

I am aware that a coalition of media companies has asked you to have Perry televised because “televising this modern-day Scopes trial would present viewers with a national civics lesson on a hotly contested issue that crosses social, political, educational, and religious boundaries.”  But the role of the courts is not to “present viewers with a national civics lesson.”  It’s to decide cases fairly.  In some cases, that goal might not be jeopardized by televising the proceedings.  But in other cases it will be.  The very fact that these media companies are intent on portraying the case as a “modern-day Scopes trial” reinforces the ample evidence that this trial should not be televised.  If you persist in failing to recognize that elementary fact, the national civics lesson that you will be providing is yet another reminder that too many of our federal judges willfully abuse their authority in order to advance their own political agendas.

If you proceed to rubber-stamp the proposed revision to Rule 77-3 in order to enable televised coverage of Perry, I respectfully submit that your reckless and prejudicial course of conduct on this matter will have clearly demonstrated that your “impartiality might reasonably be questioned” within the meaning of the judicial-disqualification law, 28 U.S.C. § 455(a), and that you will then be obligated to disqualify yourself from further participation in Perry.  Indeed, I invite you to examine dispassionately whether you are already required to disqualify yourself.

Tags: Whelan


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