Box Turtle Bulletin

Judge Walker’s day (not) in court

Perry v. Schwarzenegger’s retired Judge Vaughn Walker was not physically in court today. However, he was the only topic of debate.

Today Judge James Ware, Walker’s replacement, listened to arguments on two issues: First, should all copies of the trial tapes be rounded up and put under lock and key? Second, should the results of Perry v. Schwarzenegger be thrown out because Walker, a gay man in a relationship, should have recused himself?

Courage Campaign’s Prop8TrialTracker was there again to provide us with sometimes-almost-transcripts of the arguments. And it did not go well for the Proponents of Proposition 8.

The supporters of Proposition 8 were irate that Judge Walker had removed the tapes of the trial from his chambers and shown them on national TV!! (Actually this was a three minute clip used during a lecture which CSPAN filmed from across the room – without zoom – at an angle. I honestly couldn’t make out the person’s age, race or gender, much less who they were. It might have been Alf, for all I could tell –was Alf one of their witnesses?). But as part of their “we’re afraid of marauding gays” tactic, they sought to discredit Judge Walker as not being respectful of the danger to their witnesses.

In a fascinating turn of events, Judge Ware cleared up just how Walker had the trial tapes in his personal possession for sampling in lectures: it seems that he had given them to Walker during a gavel-passing ceremony when he retired. And then the discussion quickly became an agreement that this really wasn’t an issue after all.

The second question was even more interesting. Judge Ware started off by disclosing that he had conducted same-sex weddings, and commented that a reversal would only be a delay as whoever was the new judge would come to the same conclusion. Dinner is not going to be a happy meal at Maggie Gallagher’s tonight.

The legal question of whether Judge Walker should have recused himself goes a bit like this:

First, was there any financial component? If Walker could have made a cent one way or the other, then he HAD to recuse himself. That one went no where.

Secondly, was Perry a case that would effect Walker personally. If a reasonable person, knowing the facts, would think that the judge might be impartial, there is an argument for recusal.

This is a touchy one for the Proponents. Ware is a black man married to a white woman. Not only was yesterday’s 44th anniversary of the Loving decision still a fresh reminder, but Ware could recall the days when racists argued that a black judge couldn’t be unbiased in a civil rights case. And Ware was not hesitant to make such comparisons.

Charles Cooper, for the Proponents, agreed that there was no reason a gay man could not judge a case involving, say, some issue that would not effect him personally. No, no, no. It’s not because Walker is gay (it really is) but because he’s in a relationship. And here’s where it got interesting.

Judge Ware is not all that fond of the reasonableness test. He thinks that reasonable people have all sorts of biases and bigotries they carry around with them, but that doesn’t make them constitutional. (And he’s right. Just because one can reason, doesn’t mean that they are right. Plenty of very reasonable people hold prejudices. Of course, over time – being reasonable people – many think, educate themselves, grow, and evolve.)

And there was also the problem about “knowing the facts”. Cooper kept asserting that because Walker has been in a relationship for ten years, then therefore this equates to being “similarly situated to the plaintiffs.” Judge Ware had to remind him repeatedly that it was not a “fact” that Walker intended, wanted, or even considered marrying his partner. It was only speculation, not a fact, that Cooper has to support his claim.

Cooper, unable to assert that Walker truly wanted to marry, focused on Walker’s failure to disclose his relationship. Ware wasn’t easy on that issue. He posed some other questions about disclosure and recusal:

You’ve raised the disclosure question many times. You seem to say that judge is required to disclose. In a case where race is involved, sometimes disclosure not made because obvious. We are bound by our past which is largely irrelevant. If a female judge has suffered rape or sexual assault and is hearing a case on rape/assault, must she disclose?

Ware wasn’t all that pleased with the argument that a judge is presumed to be biased and must disclose all the details of their history. He seemed resistant to Cooper’s idea that if Walker didn’t have an interest in marrying, he should have announced his relationship along with his disinclination to marry and let “reasonable people” decide whether to ask for recusal.

Ted Boutrous, for the Plaintiffs, took a rather aggressive position. He asserted that in cases of race, ethnicity, religion, members of a minority group can act without bias, even if they themselves are in a position to benefit from a civil rights case. He argued that gay people get in relationships – that’s what people do. And do insist that ‘gay in a relationship’ was inherently biased is really to argue that gay judges are incapable of judging a case fairly.

Courts do not presume that a judge is biased. Rather, they presume the opposite – that a judge, who has gone through appointment, vetting, and approval is capable of performing his job without bias. To presume that Walker is biased, is to make the special presumption that gay judges (and by implication all minority judges) are unlike other judges.

Ware did not ready to agree that Walker should have presided over a marriage case if he, himself, intended to marry. And he was not without some questions for Ted Boutrous.

He noted that race is often obvious and need no disclosure, while orientation is often not. So he questioned whether Boutrous believed that the judge in Perry v. Schwarzenegger should disclose religious affiliation? What if he were Mormon?

Boutrous responded that regardless of a judge’s religious affiliation “we presume that judge is able to live up to his duty of impartiality.” (This is an interesting direction, considering that both Judge Walker and Judge Ware are Republicans, another non-obvious attribute that clearly didn’t direct their judgement on marriages).

Judge Ware noted that while race, religion, and gender issues had been addressed in the past, this was the first time that the question has been raised about the impartiality of gay people and that it had to given due seriousness. Nevertheless, he indicated that he will make his judgement promptly, probably within 24 hours.

We have reason to be cautiously optimistic.