Bench Memos

The Most Egregious Performance Ever by a Federal District Judge

Consider the totality of Judge Walker’s conduct in the anti-Prop 8 case:

Let’s start with Walker’s initial case-management conference when he determined, to the surprise even of plaintiffs’ lawyer Ted Olson, that the case couldn’t be resolved, one way or the other (as other courts have done in similar cases), as a matter of law but would instead require extensive discovery into supposed factual issues.

Let’s continue with 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 the incredibly intrusive discovery, grossly underprotective of First Amendment associational rights, that Walker authorized into the internal campaign communications of the Prop 8 sponsors.  That ruling was overturned, in part, by an extraordinary writ of mandamus issued by a Ninth Circuit panel consisting entirely of Clinton appointees.  But the portion that survived enabled plaintiffs to conduct scorched-earth discovery that leveraged the massive resource advantage provided by their lavish Hollywood backers.  And the sweeping judicial invasion of the core political speech rights and associational rights of Prop 8 supporters had the added benefit, from Walker’s perspective, of intimidating opponents of same-sex marriage from ever daring to exercise those rights again.

Then there’s 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:

The District Court attempted to change its rules at the eleventh hour to treat this case differently than other trials in the district. Not only did it ignore the federal statute that establishes the procedures by which its rules may be amended, its express purpose was to broadcast a high-profile trial that would include witness testimony about a contentious issue. If courts are to require that others follow regular procedures, courts must do so as well.

Then Walker presided over a parade of anti-Prop 8 witnesses at trial who gave lengthy testimony, only a tiny fraction of which was relevant to any sound understanding of the issues in dispute—and all of that could have been in the form of expert or documentary submissions.  And—surprise, surprise—every single one of plaintiffs’ “expert” witnesses is an activist for same-sex marriage whose “expert” testimony was just a repackaging of their political advocacy.

Oh, and let’s not forget that all along Walker apparently failed to disclose to the parties basic personal facts that would have enabled them to assess whether his impartiality in the matter might reasonably be questioned.

Then there’s Walker’s crazed—and, as one same-sex marriage advocate put it, “radical”—ruling on final judgment.  That ruling ignored binding Supreme Court and Ninth Circuit precedent, concocted absurd factual findings, and grossly misstated the state of the record on key points.

And, just yesterday, Walker’s refusal to stay his judgment pending appeal, the latest step in his gamesmanship to try to deprive Prop 8 proponents of their appeal rights and to avoid effective appellate review of his shenanigans.

Walker’s course of conduct would be sufficient cause for national scandal in any case.  That it comes in a case that aims to radically remake the central social institution of American society makes it utterly intolerable.

I can’t imagine that any federal district judge has ever committed more egregious and momentous acts of malfeasance in a case.

Most Popular

Law & the Courts

The Last Trusted Prosecutor in Washington

John Durham may be the most consequential and least known figure in Washington right now. In May, U.S. attorney general William Barr selected Durham, a longtime prosecutor with a résumé so sterling it nearly glows, to investigate the origins of the special counsel’s probe into Russian interference in the ... Read More
Law & the Courts

The Last Trusted Prosecutor in Washington

John Durham may be the most consequential and least known figure in Washington right now. In May, U.S. attorney general William Barr selected Durham, a longtime prosecutor with a résumé so sterling it nearly glows, to investigate the origins of the special counsel’s probe into Russian interference in the ... Read More
World

WHO Failed

Since its inception 72 years ago almost to the day, the World Health Organization (WHO)  has been credited with the eradication of smallpox and the near eradication of other devastating illnesses, including leprosy and river blindness. This record of success makes the current corruption of the organization ... Read More
World

WHO Failed

Since its inception 72 years ago almost to the day, the World Health Organization (WHO)  has been credited with the eradication of smallpox and the near eradication of other devastating illnesses, including leprosy and river blindness. This record of success makes the current corruption of the organization ... Read More

The Eeyore Syndrome

In A. A. Milne's classic Winne-the-Pooh children’s tales, Eeyore, the old gray donkey, is perennially pessimistic and gloomy. He always expects the worst to happen. Milne understood that Eeyore’s outbursts of depression could at first be salutatory but then become monotonous. The outlook of the pessimist ... Read More

The Eeyore Syndrome

In A. A. Milne's classic Winne-the-Pooh children’s tales, Eeyore, the old gray donkey, is perennially pessimistic and gloomy. He always expects the worst to happen. Milne understood that Eeyore’s outbursts of depression could at first be salutatory but then become monotonous. The outlook of the pessimist ... Read More

The Trail Leading Back to the Wuhan Labs

It is understandable that many would be wary of the notion that the origin of the coronavirus could be discovered by some documentary filmmaker who used to live in China. Matthew Tye, who creates YouTube videos, contends he has identified the source of the coronavirus — and a great deal of the information that ... Read More

The Trail Leading Back to the Wuhan Labs

It is understandable that many would be wary of the notion that the origin of the coronavirus could be discovered by some documentary filmmaker who used to live in China. Matthew Tye, who creates YouTube videos, contends he has identified the source of the coronavirus — and a great deal of the information that ... Read More
World

How to Make China Pay

One of the big questions facing the international community today is how to hold China legally and politically accountable for all its dishonesty and harm to people around the world. According to reports, U.S. intelligence agencies have confirmed to the White House that China has deliberately understated the ... Read More
World

How to Make China Pay

One of the big questions facing the international community today is how to hold China legally and politically accountable for all its dishonesty and harm to people around the world. According to reports, U.S. intelligence agencies have confirmed to the White House that China has deliberately understated the ... Read More
Health Care

The Experts Lied to Us about Masks

When the stakes are highest, the truth counts the most. Or maybe when things get really serious, that’s when the people really can’t be trusted with the truth. It’s pretty clear which of these two ideas is the one that has been guiding elite medical, political, and journalistic institutions, isn’t it? ... Read More
Health Care

The Experts Lied to Us about Masks

When the stakes are highest, the truth counts the most. Or maybe when things get really serious, that’s when the people really can’t be trusted with the truth. It’s pretty clear which of these two ideas is the one that has been guiding elite medical, political, and journalistic institutions, isn’t it? ... Read More