Bench Memos

Forthcoming Denial of Motion to Vacate Anti-Prop 8 Judgment

By all accounts, it was clear from yesterday’s hearing that Chief Judge James Ware will deny Prop 8 proponents’ motion to vacate former district judge Vaughn Walker’s anti-Prop 8 judgment on account of Walker’s failure to recuse. Notwithstanding what I believe to be the compelling merits of the motion, that result will be no surprise. It would take a judge of clarity and courage to do the right thing, and it would be especially uncomfortable for a longtime colleague of Walker’s to vacate the signature ruling of Walker’s career. No one familiar with Ware would have expected him to grant the motion. As a prominent lawyer in the Northern District of California put it (in an e-mail to me):

[Ware] is infamous for having contrived a story about his brother being attacked by a racist mob which made him, a black man, especially sensitive to racial prejudice. Turns out the incident never happened, he didn’t even have a brother. The fabrication kept Ware from advancing to the 9th Circuit but was not considered serious enough to compel him to step down from the District Court. The excuse for his staying was that he hadn’t actually told the story under oath, just to the FBI and congressional staffers during their conduct of the background investigation. Ha!

Since then, he “enjoys” a well-earned reputation for laziness. He has transformed the back wall of his courtroom, not his chambers mind you, into a shrine to the civil rights movement with posters of Malcolm X, candidate Barack Obama and other memorabilia prominently displayed…. In my opinion, while he’s not distinguished himself as a jurist of prominence, he, too, would use the occasion, were it to present itself to him, to burnish his credentials with the left and atone for his past indiscretion(s).

Ware stated yesterday that he’s been thinking hard about Prop 8 proponents’ motion ever since it was filed. We’ll see—evidently, as early as today—if his ruling reflects more serious thinking than most of the confused critics of the motion have offered. (I’ll note again that, among the critics, Stephen Gillers has come much closer than anyone else to getting things right.)

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