Bench Memos

Judge Walker’s Gambit to Bamboozle the Supreme Court—Part 2

A second matter that Judge Walker purported “to clarify” in the immediate aftermath of the Supreme Court’s interim order yesterday barring Internet broadcasting of the trial was the series of badly confused steps by which he unsuccessfully tried to revise Local Rule 77-3 for the specific purpose of enabling televised coverage of his anti-Proposition 8 show trial.  Among other things, Walker stated yesterday that a revision to Local Rule 77-3 was adopted at a “special court meeting not held for the purpose of considering an amendment to Rule 77-3, but for another purpose.”  According to Walker, the revision was adopted “without a comment period, because it was a conforming amendment to Ninth Circuit policy.”  Walker also acknowledged, again (see point 1 here), that the rush to amend Rule 77-3 was driven by his desire to televise the anti-Prop 8 trial.  (Official Transcript for Jan. 11, 2010, at 10-11.)

Walker’s effort to defend his purported revision of Rule 77-3 fails.  First, there is no exception to the notice-and-comment requirements of 28 U.S.C. § 2071 for revisions of local rules that are intended to conform with circuit policy.  (It’s also far from clear that the changes to circuit policy were lawfully implemented.)  Second, as I discussed in point 3 here, the notion that there was an “immediate need” (under section 2071(e)) to revise Local Rule 77-3 to jumpstart implementation of the Ninth Circuit’s pilot program is absurd.  The only “immediate need” that Walker perceived was the need to find some way to orchestrate the televised show trial that he has been intent on conducting. 

Walker’s eagerness to play circus master is also reflected in his announcement yesterday, predictably eliciting guffaws in the courtroom audience, that he had received 138,542 responses in favor of his purported revision to Local Rule 77-3 and 32 responses opposed.  Walker didn’t see fit to note that 138,248 of the supportive responses were signatures solicited by an activist group called the Courage Campaign that launched a petition drive urging its supporters to sign their names to a letter to Walker that “insist[s] that the trial of Proposition 8 be televised.”  (As I’ve noted, it was that same Courage Campaign that produced a notorious anti-Prop 8 ad that appealed to anti-religious bigotry.)

(Part 3 to come.)