In August 2010, when Judge Vaughn Walker ruled in favor of those seeking to overturn Prop. 8 (thereby effectively legalizing gay marriage in California), I noted that Judge Walker seemed almost to be taking a role as advocate (emphasis added):

Throughout the opinion, the Judge goes into great detail regarding trial testimony and justifications for Prop. 8. The Judge then holds, in essence, that the justifications are irrational and have no legitimate societal basis.

The Judge even designated a section of the opinion “Credibility Determinations.” Many commentators think the Judge was trying to insulate the opinion from appeal since appeals courts do not normally overturn credibility determinations, since only the trial judge observed the witness.

In this case, the Judge seems to be trying too hard to insulate the opinion, and I doubt that on such a momentus finding of a new constitutional right for same sex marriage that an appeals court, much less the U.S. Supreme Court, will care much about the credibility of witnesses as a basis for a legal ruling.

The Ninth Circuit upheld the decision, but not based on the credibility of witnesses.  Indeed, the Ninth Circuit refused to rule on whether gay marriage was constitutionally required in itself, ruling instead that since for a period of time gay marriage was lawful, the taking away of that “right” was unconstitutional.

There were challenges to Judge Walker’s ruling claiming that because he was in a long term gay relationship which might put him in a position to benefit from his ruling, he should have recused himself.  Those challenges were addressed in the Ninth Circuit opinion, and failed as they should have, because some generalized interest in an issue is not enough to require recusal.

Yet there’s an interesting twist in the saga of whether Judge Walker was personally interested beyond what might normally be expected from a Judge.

Patterico has obtained emails which appear to come from former Judge Walker, EXCLUSIVE: EMails Show Prop. 8 Judge Sought Ted Olson’s Advice On Whether to Attend Supreme Court Argument on Gay Marriage:

 … the behavior of Walker, as revealed by these emails, creates the appearance of a partisan rather than an impartial former jurist who simply believes he issued a correct ruling. Walker was so invested in his ruling that he wanted to watch the appellate courts’ argument himself. He went out of his way to make sure that he consulted with the winning side to help them prevail in the appellate courts. Specifically, he sought to learn whether his attendance at the appellate arguments would be acceptable to the prevailing party — and when told it would not be, he deferred to the prevailing party’s media strategy. All of this, cumulatively, suggests an emotional investment in the outcome of the case. The emails are likely to reinforce the widely held perception among Prop. 8 supporters that Walker was less than impartial in his rulings during the trial.

Patterico recounts in his post the efforts he made to verify the emails’ authenticity.  Assuming the emails are real, it does confirm my reaction when I read Judge Walker’s opinion two and one-half years ago, that he was trying really hard for a result which would hold up on appeal.

In the end, the issue is a lot larger than Judge Walker, the witnesses, or the trial tactics.  It’s one of those bigger than the person issues, and whether Judge Walker was interested or not in the trial or the appeals will not sway a single vote on the Supreme Court, or change a single mind.