The man who will judge Judge Walker

Timothy Kincaid

April 28th, 2011

The Proponents of Proposition 8 have filed two complaints with the Ninth Circuit Court of Appeals.

The first is that Judge Walker should not have shown a three minute clip of the trial to a class of students or allowed CSPAN to film the presentation from an angle far across the room. Consequently, they are demanding that all copies of the trial be put under lock and key, preferably never to be seen. The Plaintiffs in the case have countered by requesting that the stay on the distribution of the video images be lifted and that the public be allowed to visually experience the case.

The second motion, frankly, a blatant appeal to bigotry.

After Judge Walker retired from the bench, he let it be publicly known that he is a gay man (as has long been assumed) and that he has been in a relationship for ten years. They argue that Judge Walker could personally benefit from a positive outcome for Perry v. Schwarzenegger and, therefore, should have recused himself.

It is, indeed, a long standing assumption that “no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome.” It would be most improper for Judge Walker to have heard a case involving a land dispute in which he was one of the land owners.

But the premise of the Proponents’ arguments is that any gay person in a relationship – and, by extension, any gay person who might ever get in a relationship – has an “interest that could be substantially affected by the outcome of the proceeding,” is one that defines gay people as inherently biased. Their argument is that gay people are, by definition incapable of ruling on cases that impact that class of people.

The district judge who issued this judgment, retired Chief Judge Vaughn R. Walker, has now disclosed to the press on April 6, 2011, that he is gay and that he has been in a committed relationship for more than 10 years. … The published reports do not address the question whether former Chief Judge Walker and his partner have, or have had, any interest in marriage should the injunction he issued be upheld on appeal.

Given that Chief Judge Walker was in a committed, long-term, same-sex relationship throughout this case (and for many years before the case commenced), it is clear that his “impartiality might reasonably [have been] questioned” from the outset.

Look again at the above. “It is clear”, say the Proponents. But what makes this clear? The “clarity” of Judge Walker’s impartiality lies solely in Judge Walker’s sexual orientation. Their argument, at its base, is nothing other that the ‘reasoning’ that because gay people have an interest in what happens to gay people, that such matters must be determined by others who have no personal experience or personal interest in such matters.

This is a rather peculiar standard. If this were to be applied to other matters, it would preclude African American judges from issues involving matters of racial discrimination. Or, for that matter, were a dispute over the Catholic Church’s interaction with a Synagogue be taken to the level of the Supreme Court, there would be no Justices who could hear the case.

But, as cover for the ugliness of their bigotry (and I don’t use that word freely) much is made of the pretense that it isn’t Walker’s orientation that is at issue, but his relationship. In an insulting – but ironic – turn, the Plaintiffs who are seeking that every image of their presentation in court be hidden from the public now argue that Judge Walker’s personal life be subjected to the greatest level of scrutiny.

Chief Judge Walker thus had a duty to disclose not only the facts concerning his relationship, but also his marriage intentions, for the parties (and the public) were entitled to know whether his waivable conflict was actually a nonwaivable conflict mandating his disqualification. Only if Chief Judge Walker had unequivocally disavowed any interest in marrying his partner could the parties and the public be confident that he did not have a direct personal interest in the outcome of the case in violation of Section 455(b)(4). Because he did not do so when the case was assigned to him, and has not done so since, it must be presumed that he has an interest in marrying his partner and therefore was in fact the “judge in his own case.”

Let’s not be fools. Had Walker been a single man about town, they would have filed the same motion. And, in fact, the Proponents and those funding them have been arguing since the judge was assigned that no gay man should be allowed to hear cases involving discrimination against gay people. That his public disclosure of his orientation included a disclosure of his relationship only gave their argument a sheen of palatability so that their supporters have a pretense of decency.

In twenty years’ time, this motion will be read aloud in courtroom to shocked law students who will feel shame that their profession was ever used to demean a person’s judgment based on their orientation. Out of embarrassment they will laugh at the demand that Walker “unequivocally disavowed any interest in marrying his partner.”

But this year, the motion will be heard as though it is a legitimate complaint. By Walker’s replacement, Judge James Ware.

Judge Ware continues the rather strange Republican linkage to this case. Ware, a former military man long affiliated with the Party, has been advanced in most cases by Republican Governors or politicians. His position in the Federal Court system is due to an appointment on August 3, 1990 by President George H. W. Bush.

Based solely on such credentials, Ware would not be a good candidate for supporter of civil equality for gay people.

But this case is not really about Proposition 8; it’s about whether being gay precludes one from ruing on discrimination against gay people. And Ware has a history which may play into his decisions. In April 1996, the San Francisco Chronicle told it this way:

On a Sunday afternoon in Birmingham, Ala., he said, he and his younger brother slipped out of church early and hopped on their bike to go play football. James, 16, was pedaling; 14-year-old Virgil perched on the handlebars.

Suddenly, two white teenage boys on a motor scooter pulled alongside and shouted racial epithets. Then they pulled out a rifle and shot Virgil in the chest, killing him instantly.

Later that day, still numb, James and his family learned that only a few hours before Virgil had been gunned down, the Sixteenth Street Baptist Church across town had been bombed by the Ku Klux Klan. Four black girls were killed in that tragedy on September 15, 1963 — a date that became a milestone in the civil rights movement. The murder of Virgil Ware also became engraved in that era, his name inscribed on a memorial to those who died during the movement.

The shooting remains a blur to James Ware, but he remembers the anger, then the rage, that overwhelmed him. In the decades since, the fury evolved into a determination to see that Virgil’s death was not in vain.

“It molded me,” Ware says now, “into a person who was hungry for justice.”

The shooting of Virgil Ware is an iconic moment in the struggle for black civil rights. And this retelling of the tale is a reminder of that time, an era in which Virgil’s murderers were never tried.

But there’s one small problem. Judge James Ware is not the same James Ware that was the teenage bicyclist; that James Ware was working in a power plant in Alabama when the article went into print.

And Ware’s lie torpedoed an appointment by Clinton in 1997 to the Ninth Circuit Court of Appeals, which was withdrawn when the scandal broke. But while he was reprimanded by the Judicial Council of the Northern District Court of California, he was not removed from the bench and his reputation for fairness allowed his career to advance.

It is too early to make any predictions, but perhaps this bump in Ware’s journey may give him some empathy for Walker. He, like Walker, has experienced political excoriation on the floor of the US Senate. He knows what it feels like to be a minority within Republican circles and to consequently be seen as suspect. And as an African American, he may not be particularly receptive to the notion that people who are part of a demographic are unsuited to rule on matters of discrimination against that demographic.

And there are other causes for hope. Ware does appear to have genuinely been involved in the civil rights movement and quite often those who experienced the battle – as opposed to some who have inherited the mantle – see rights and discrimination in terms of oppressor and oppressed. And considering that Judge Ware’s marriage was not recognized in his home state of Alabama prior to 1967, he may intimately know what it is like to be told that it really isn’t discrimination to be denied the right to marry the one you love.

And finally, we know that Ware has in the past demonstrated that he is not an advocate in opposition to equality or decency towards gay people. In 1995, Ware spoke out for a measure that would offer guarantees of job protection for gay employees working in his California judicial circuit. Other judges had opposed the measure, but Ware’s argument won out.


April 28th, 2011

Gays and lesbians obviously should never, ever be allowed to be:

1). judges
2). soldiers
3). teachers
4). parents
5). religious leaders

Am I forgetting any? Life would be a lot easier if fundamentalist Christians would get a law passed telling everyone which occupations are acceptable for American LGBT citizens.


April 28th, 2011

It’s time some talented puppeteers did a satirical re-enactment of the Prop 8 court transcripts for You-Tube.


April 28th, 2011

Is Judge Ware in a straight marriage? If so, shouldn’t he recuse himself as well, since by Prop 8 supporter’s arguments allowing gay marriage will undermine straight marriages?

enough already

April 28th, 2011

Suffering may lead to understanding for others who have suffered injustice. More often, it leads to the intractable situation we see between Israel and the Palestinians.

It should not be hard for this man to see that the agenda of these people is the same as that he experienced as a child: Hatred, pure unbridled hatred.

Failing that, I can’t imagine this court wanting to set a precedent against itself.
Justice Scalia last year showed that there are limits to even his willingness to rubber-stamp hatred – and those limits begin where the hateful mob sets one toe upon the raised dais of the Judge’s bench.


April 28th, 2011

@homer — you left out “alive.”


April 28th, 2011

This letter appeared in today’s San Francisco Chronicle. I’m reproducing it here in full, because their letters section changes its URL daily:

“The backers of Proposition 8 have undercut their entire legal rationale by claiming that Judge Vaughn Walker should have recused himself for being gay (“Prop. 8 backers argue judge not impartial,” April 26).

“At the trial, they based their case on the argument that heterosexual marriage was somehow adversely affected by gay marriage. Without that argument, Prop. 8 is simply discrimination by a majority group against a minority, and they would have had no case.

“But in saying that a gay judge cannot rule impartially because he has a personal stake in the outcome, whereas a straight judge does not, they are admitting that Prop. 8 does not have any effect whatsoever on heterosexual marriage.

“Thus, they seem to actually be agreeing with Walker’s ruling that the law violates the equal protection clause of the Constitution.

“Ty Bardi, San Francisco”

Read more:


April 28th, 2011

This notion by the pro-H8 crowd is a real show of desperation on their part and an obvious attempt to run a parallel case in the hopes of dragging out the proceedings even longer, because they are 99% sure that they are going to ultimately lose this.

I think that they’re really hoping for another run up on the ballot in 2012 where they can use their virtually unlimited Catholic Church funding to set the terms of the debate as they did in 2008 with negative ads aimed directly at our lives as human beings, let alone citizens.

The smell you’re sensing is the smell of Christianist flop-sweat.

Timothy Kincaid

April 28th, 2011

Thanks, Chris.

I forgot to mention that Judge Ware’s wife is white.

Timothy Kincaid

April 28th, 2011


Really, their entire case is nothing more than “But they’re gay! GAY!!! Don’t you hear me? GAYYYYYY!!!!!”

Absent any prejudice of any sort, it’s difficult to come to any conclusions other than that anti-gay laws are unconstitutional. That’s why you don’t hear Boehner and crew saying that DOMA is a good law or a constitutional law, but only that “the courts should decide.”


April 28th, 2011

“…he is not an advocate in opposition to equality or decency towards gay people.”

Wait, I feel stupid here. Perhaps it is the use of the language, but does this mean he IS or IS NOT supportive? Let me work this out.

He is *** an advocate in opposition to equality or decency … (= not supportive)

He is *** an advocate **** to equality or decency … (= supportive)

Therefore, if *** equals the rule of double negative, and applying the “not” and “in opposition” as negatives,

“He is NOT an advocate IN OPPOSITION to equality …” would mean he is in opposition to equality …” However, the phrase “in opposition …” is not, per se, a negative in the English language, just to a cause. So, what does this mean in the sentence. I am hoping this means that he stands a chance to rule in Judge Walker’s favor. Forgive me for over analyzing this. I just found this sentence to be awkward. Am I alone here?


April 28th, 2011

Nothing to add other than thanks for a sweeping and affecting post that brings to light a number of different issues related to the Prop 8 trial (including the detail about Ware’s false claim about his past, which I didn’t know about) and is beautifully written.

I don’t know what your day job is, but I hope you get paid to write!

Timothy Kincaid

April 28th, 2011


Yeah, that’s a convoluted sentence with double/double negatives (For LA folk, does that make it an In-N-Out sentence?)

Basically you got it right: he’s not “not supportive”.

Timothy Kincaid

April 28th, 2011

Thanks, Matt. I’m an accountant.

enough already

April 28th, 2011

Not being a native speaker, I was so very glad to see that I wasn’t the only one having trouble with this.
Let’s see:
“…he is not an advocate in opposition to equality or decency towards gay people.”

A bit of parsing and semantic analysis and I get:

As a judge, Judge Ware is not opposed to equality in the treatment of gay people. Judge wear stands for decency in the treatment of gay people.

Hope my interpretation is right…it is based on the implied:
“…he is not an advocate who stands in opposition to equality or decency towards gay people.”


April 28th, 2011

So by claiming that Walker would benefit by being able to marry his partner, aren’t they admitting that Prop 8 harms gays by not letting them marry? Shouldn’t they claim that it should make no difference to gays whether they can marry or not?


April 28th, 2011

Thanks, Tim. I really appreciate the good work you do here and I’m always posting snippets and links to the blog on a couple of discussion boards that I’m on. It’s really good to get different points of view on these subjects.


April 28th, 2011

Thanks Timothy and enough already:

I feel better reading that — and also that I wasn’t alone in my misunderstanding.

…not to mention that *hopefully* a semi-rational judge will be hearing this ridiculous, bigoted motion.

Steven B

April 28th, 2011

Johnathan, do you mean that a semi-rational judge will hear the motion in a hopeful manner? And if so, how would this hopeful attitude make a difference in his decision?

I’m so confused.

Timothy (TRiG)

April 29th, 2011

Steven B, language evolves. The fight over that meaning of the word hopefully has long been lost.

Leave the prescriptivists and join the descriptivists: the view is much better from here!


enough already

April 29th, 2011

Hopefully, presently, for your convenience, “impact” used as a verb….

German is losing the genitive case, it’s like English is losing the subjunctive (that was a joke, for the humorless among us).

Living languages evolve. Dead languages don’t.


April 29th, 2011

I had the same thought as Bryan. Aren’t they admitting that gays are missing out on some benefits that marriage would provide? During the trial it seemed like they were making the case that California DPs were no different than marriages. But here, you have them now making the case that Judge Walker will benefit from the outcome.

How can they have it both ways?


April 29th, 2011

Your article is well written and repeats some common ideas, but really, doesn’t go far enough in following the logic.

You correctly state that this logic would mean an African-American judge couldn’t hear a case on racial discrimination because he or she might be a victim of racial discrimination at some later point, but ignores that white people have a race, too. A white person’s ability TO discriminate based on race would be affected by an anti-discrimination case, and it might increase the number of qualified applicants he might compete against later in he career.

A female judge might be conscious of the fact that sexual discrimination could be aimed at her, but a male judge might well be conscious of all the behaviors he had taken for granted as acceptable or at least that he could get away with, and be aware that ruling against sexual discrimination could adversely affect him personally at some point.

So, not only would this logic mean that no member of a racial minority could judge, it means that no person of ANY race could judge, no person of ANY gender could judge, no person of ANY (or even no) religion could judge, and as has been pointed out, no member of ANY sexual orientation could judge.

Priya Lynn

April 29th, 2011

Lymis, by that logic a bisexual person could judge because they’d have no built in bias either way.

David Brian Holt

April 29th, 2011

Judge Ware was my civil procedure professor in law school. I really don’t like that you are bringing up his past like this. The man has apologized repeatedly. Additionally, I’ve spoken with him about Prop. 8 and he talked about it in class. He fully believes in equality. :)

Richard Rush

April 29th, 2011

David Brian,

I really don’t like that you are bringing up his past like this.

If Timothy hadn’t brought up his past, our enemies surely would have, and then our side would be accused of deliberately attempting to hide it. Better to bring it out up front, I think.

Timothy Kincaid

April 29th, 2011


Good points.

Timothy Kincaid

April 29th, 2011

David Brian Holt,

Thank you for your comment and it is encouraging.

I don’t bring up his error to humiliate the man, but rather to ponder whether having gone through such an ordeal will lead him to be less exacting when it comes time to judge Judge Walker.


April 29th, 2011

Like Chris said above, if the argument that Judge Walker should’ve recused himself because of his being gay and in a relationship, then it could be argued that a heterosexual judge would also be biased since there’s something to gain (according to the Prop 8 argument which is “protection of marriage”). It’s a ridiculous argument.

And just to be clear, Ware claimed to be the same Ware whose brother was shot dead even though he wasn’t?

If that’s the case, why would someone of his intelligence lie about a thing like that? Something that can be proved or disproved as fact, rather easily.

What kind of person would do that?


April 29th, 2011

Am I the only one perplexed by how a man can go around telling people more than once that he was the James Ware that had his brother killed right in front of him by racists, when in fact he wasn’t?

How the heck does he get confused as to whether he actually experienced such a horrific and traumatic event? It boggles my mind.

BTW, I’m NOT bashing the man. I just have no idea how a person can go around telling a story several times to several audiences that a hate crime occurred right in front of your eyes when you were kid, when in fact that never happened.

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