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Judge Walker’s interest

Judge Walker’s interest

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.


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Judge Walker clearly was never an objective jurist on this issue.

He was, and is now, decidedly a partisan FOR gay marriage.

“…since for a period of time gay marriage was lawful, the taking away of that “right” was unconstitutional.”

Polygamy was legal in 19th Century America. There were few, if any laws dealing with it directly, since it was against our European/American cultural norms, and laws is usually a reaction to a practice common enough to challenge norms.

Polygamy CERTAINLY got to be illegal, including at the Federal level.

The argument the court used to justify itself in its decision was this: that there had been a period of time in which homosexual “marriage” was lawful that it would be unconstitutional to take away that “right.” This is specious and sophistical.

As it is now, for example, there is a long, long period of time in which so-called assault weapons have been legal; I don’t hear anyone on the left using the argument that it would be unconstitutional to infringe that right to own them since gun-owners have had that right to own them up until now.

We had laws that permitted slavery. The country had no problem overturning that right, did it?

When there is no standard to determine what is right or wrong, when society has lost its bearing, it moral underpinnings, any sophistical argument will suffice to COME TO ANY CONCLUSION. No one is safe from the will to power. Judge Walker deserves our contempt.

Anyone with an opinion on the matter – one way or the other – is going to draw different conclusions from this. First, the judge is retired from the bench. As a gay man, or course he’s interested in the case. As it is one of the more notorious cases of his career, I can even understand his interest in following the appeals process.

Suppose the case had gone the other way and the judge was a member of the LDS church, it would just be different people upset.

I myself have a somewhat personal interest in this case as I’m one of those who was married in between the CA Supreme Court ruling and the passage of Prop 8. And I haven’t voted for a democrat since 1996 so don’t assume my heart bleeds.

You have to take the personal out of this and argue the opinion. These e-mails don’t do that.

    Ragspierre in reply to Scott. | March 22, 2013 at 5:07 pm

    You ASSume…incorrectly…that all gay men want “gay marriage”.

    They don’t.

      Scott in reply to Ragspierre. | March 22, 2013 at 6:31 pm

      No, I didn’t assume that, and agree that all gay men don’t support it.

      Has nothing to do with this though. If you don’t support it, you’re going to have to argue the facts of the judges opinion. His ex post facto communication isn’t going to matter. That’s my opinion, fwiw.

        Ragspierre in reply to Scott. | March 22, 2013 at 6:45 pm

        Agreed as to the last.

        His crappy decision stands on its own.

        BUT his shepherding of his crappy decision through the appellate process IS instructive of his partisanship.

“… since for a period of time gay marriage was lawful, the taking away of that “right” was unconstitutional.”

I could see this doctrine will work for taxes:
I didn’t pay higher taxes and took home more money .. now I don’t … raising taxes is unconstitutional.

The uses of this doctrine are unlimited.
It’s the “no-change” doctrine.

Karen Sacandy | March 22, 2013 at 5:21 pm

I would find all this discussion of the decision hilarious, if it weren’t for the fact dignifying it with discussion is disgusting.

If our system means one very interested – or bored – judge can negate the votes of millions of Californians, then I say, it’s broken. Broken…. broken…. broken…

The arrogance of it all: repulsive.

I think it’s mildly important to remember that California recognizes civil unions, which are explicitly defined as having the same rights and responsibilities as marriages.

Prop. 8 is about what the CA database calls it, not what the rights are as between people involved in a civil union. It has nothing to do with whether a homosexual couple can throw a party, or what they can write on their invitations, or what THEY call their relationship.

Too much of judicial reasoning is nothing more than apologetics for pre-ordained conclusions.

The legal logic does not lead to the conclusion. Instead the conclusion is reverse engineered to create the logic.

Juba Doobai! | March 22, 2013 at 8:00 pm

For a period of time, slavery was lawful. I guess the Ninth would have voted against depriving slaveholders the right to make slaves of others.

    Ragspierre in reply to Juba Doobai!. | March 23, 2013 at 11:16 am

    Historical vignettes abound…

    Time was, I could have bought a Thompson submachine gun by mail, along with a hand grenade or two.

    I could saunter into my local hardware store and buy dynamite over the counter.

    Then, I could stroll down to the druggist and buy cocaine carte blanch.

    Now, I have to sign a register to buy an antihistamine.