Bench Memos

Judge Walker’s Skewed Judgment

According to this column in today’s San Francisco Chronicle, “The biggest open secret in the landmark trial over same-sex marriage being heard in San Francisco is that the federal judge who will decide the case, Chief U.S. District Judge Vaughn Walker, is himself gay.”

In terms of his judicial performance in the anti-Proposition 8 case, the bottom-line question that matters isn’t whether Walker is straight or gay.  It’s whether he is capable of ruling impartially.  I have no reason to doubt that there are homosexuals who could preside impartially over this case, just as I have no reason to doubt that there are heterosexuals whose bias in favor of, or against, same-sex marriage would unduly skew their handling of the case.

From the outset, Walker’s entire course of conduct in the anti-Prop 8 case has reflected a manifest design to turn the lawsuit into a high-profile, culture-transforming, history-making, Scopes-style show trial of Prop 8’s sponsors.  Consider his series of controversial—and, in many instances, unprecedented—decisions: 

Take, for example, Walker’s resort to procedural shenanigans and outright illegality in support of his fervent desire to broadcast the trial, in utter disregard of (if not affirmatively welcoming) the harassment and abuse that pro-Prop 8 witnesses would reasonably anticipate.  Walker’s decision was ultimately blocked by an extraordinary (and fully warranted) stay order by the Supreme Court in an opinion that was plainly a stinging rebuke of Walker’s lack of impartiality. 

Take Walker’s failure to decide the case, one way or the other (as other courts have done in similar cases), as a matter of law and his concocting of supposed factual issues to be decided at trial. 

Take the incredibly intrusive discovery, grossly underprotective of First Amendment associational rights, that Walker authorized into the internal communications of the Prop 8 sponsors—a ruling overturned, in part, by an extraordinary writ of mandamus issued by a Ninth Circuit panel consisting entirely of Clinton appointees. 

Take Walker’s insane and unworkable inquiry into the subjective motivations of the more than seven million Californians who voted in support of Prop 8. 

Take Walker’s permitting a parade of anti-Prop 8 witnesses at trial who gave lengthy testimony that had no conceivable bearing on any factual or legal issues in dispute but who provided useful theater for the anti-Prop 8 cause. 

And so on. 

Walker’s entire course of conduct has only one sensible explanation:  that Walker is hellbent to use the case to advance the cause of same-sex marriage.  Given his manifest inability to be impartial, Walker should have recused himself from the beginning, and he remains obligated to do so now.

[Cross-posted on The Corner]

Most Popular

World

Sweden: Trouble in Paradise?

Writing in Politico, Paulina Neuding returns to the topic of Sweden’s crime problem and the unwillingness of the Swedish elite to admit what has been going on: Indeed it is, although, to be fair, those taboos are fraying fairly rapidly. Nevertheless, Sweden remains a country where, whether by law or, even more ... Read More
Economy & Business

A Trump Trade and Economic Doctrine

If the Treasury Department’s recent semiannual report is any guide, the Trump administration still doesn’t quite get it when it comes to trade imbalances. “The US government has all the tools it needs to achieve balanced trade without risking a trade war,” writes Joseph Gagnon for the Peterson Institute ... Read More
Politics & Policy

The Comey–Trump Dance

I never thought the Comey book would make much news for the simple reason that it would be outrageous if it did. If Comey knew something relevant and important about the Russia investigation that we didn’t already know, he couldn’t possibly put it in his book. Let’s say he did have something big on the ... Read More
Politics & Policy

Is James Comey Michael Wolff-ing Himself?

Michael Wolff published a runaway bestseller that left his reputation in tatters. James Comey may be doing a version of the same thing. The rap on Wolff was that he made stuff up. That's not the issue with Comey. It's that his shots at Trump -- although mild by Trump standards -- don't accord with his high-minded ... Read More
Culture

Wednesday Links

T'was the 18th of April in seventy-five: The midnight ride of William Dawes and Samuel Prescott (and Paul Revere). The Forgotten Nazi History of “One-Pot Meals.” Dorothy’s Wizard of Oz Ruby Slippers on Sale for a Whopping $6 Million. On April 18, 1906, an earthquake and fire destroyed 80 percent of ... Read More
Politics & Policy

The Underappreciated Barbara Bush

Making the click-through worthwhile: realizing how little we appreciated Barbara Bush when she was in the public’s eye; Mike Pompeo meets with Kim Jong Un and the long road to presidential attendance at high-stakes summit meetings; and Democrats propose a vast, expensive new plan to tackle unemployment . . . at ... Read More
White House

McConnell and Russian Election Interference

Senate majority leader Mitch McConnell says he won't bring legislation to the floor to protect special prosecutor Robert Mueller's investigation. The incident has inspired liberals to revive their complaints that McConnell put party before country in the last weeks of the 2016 election. The charge, which I have ... Read More
World

Macron’s Post-Democratic ‘Europe’

Whatever else you may think about France’s President Macron, he is, so far as his own country is concerned, an interesting and innovative politician. But when it comes to the EU, he remains committed to the old Procrustean vision that has caused the union so much trouble, is about to cost it one of its largest ... Read More