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Judge Walker’s day (not) in court

Timothy Kincaid

June 13th, 2011

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.



June 13th, 2011 | LINK

Please let the ruling be a bitchslap please let the ruling be a bitchslap please let the ruling be a bitchslap

June 14th, 2011 | LINK

All the focus on the formalities has implicit in it that a gay Judge would making impartial rulings at trial or would fail to weigh evidence judiciously.

Now, having followed the trial, it’s pretty clear that Judge Walker went out of his way, most of the time, to accommodate the Prop8 proponents. He even let a non-expert witness testify, David Blankenhorn, without whom the defense would have had just about no one serious.

I can’t think of a single, significant procedural issue that went against the Prop8 people. You? Live broadcast was a sideshow and ended up decided on appeal. The standing issue on the County has already been affirmed on appeal. The other standing issues referred to the CA Supremes, so it’s still a jump shot, and abuse of judicial discretion can hardly be in question.

As for the substance of his decision, it’s a pretty tightly reasoned opinion. One might disagree with it, but it hardly reads like the kind of opinions that look like naked judicial power (or biased abdication of judicial authority). Frankly, it’s the low-standard opinions, the ‘rational-basis’ ones, that read that way, for the most part.

Ben In Oakland
June 14th, 2011 | LINK

NOM undercuts their own arguments.

First, of course, they are NOT disputing the facts of walker’s decision, only that he is gay. It’s called an ad hominem attack– if you can’t dispute the logic, attack the man instead.

Second, they were not able to provide an even remotely credible defense. They just threw a lot of mud, hoping some would stick. Their “star” witness was unqualified, at best. And admitted that NOM’s “defense” was completely bogus.

Third, if marriage equality is a threat to ALL heterosexual marriages and families, then no heterosexual judge could be impartial. After all, marriage equality, by NOM’s own rhetoric, is a threat the freedom, children, heterosexual marriage, family, and faith. Who could be objective in that situation?

They also claim the judge walker could benefit by being married, thus admitting that California’s domestic partnerships are in fact NOT the equal of legal civil marriage.

It’s just the same plain old ugly anti-gay bigotry, dressed up in its Sunday-go-to-meetin’ drag, and funded by the Catholic Church and their Mormon friends-for-the-moment

June 14th, 2011 | LINK

Read the live blog over at Prop8Trialtracker and Cooper made a fool of himself (again). Ware seemed to be equally tough on Boutrous, but Boutrous had actual answers.

From the admittedly sketchy posts, it seems as though the Proponents’ presumption of Walker’s bias — and that’s what their argument boiled down to — ticked Ware off.

I suspect they lost, but it will be interesting to see Ware’s opinion.

Richard Rush
June 14th, 2011 | LINK

Regarding the trial tapes, how could anyone take this seriously?: “. . . they sought to discredit Judge Walker as not being respectful of the danger to their witnesses.” The only evidence supporting the danger-argument I can think of is that, supposedly, one woman had a styrofoam cross knocked out of her hand. Are Maggie and Brian et al. risking their lives by routinely being out in public? If so, where is the evidence?

The obvious fact is that the only danger from the release of the tapes is that the public would see how their case for Prop8 collapsed in the courtroom with their pathetically few and inept witnesses being under oath and cross-examined.

If the Prop8 proponents thought they had made a compelling case, they would be demanding that the tapes be released on Netflix.

And, Ben, you nailed it on several key points.

Donny D.
June 14th, 2011 | LINK

Excellent article, Timothy. By far the best I’ve seen on this subject.

Shannon Spencer Fox
June 14th, 2011 | LINK

If the Prop8 proponents thought they had made a compelling case, they would be demanding that the tapes be released on Netflix.

Hey now, Richard, be serious… they’d be hocking it for $20 a pop with every ‘dire alert’ email blast they send out. This is the Professional Anti-Gay Lobby, after all. ;-)

Regan DuCasse
June 14th, 2011 | LINK

I read the transcripts posted over at P8TT and I’ve followed this case extremely closely since 2008. I read Walker’s 138 page conclusion for his decision, and I watched the appeals before.
Prop.8 supporters are unceasing in their spin on not only how both trials were conducted, but after this. I believe their next tactic will be to sue the AG’s office for not defending 8 in the appeals court. Omitting of course, the reason why.
Two very substantial reasons why.

Failing those, likely they’ll say all over again that the AG, as was everyone involved, like Cooper or reps from his office and that of the ADF, had received threats and were too afraid to show up in court.

However much they show up everywhere ELSE to testify, so to speak.

I’m looking forward to how NOM and FRC et al, respond to Ware, and his decision.
Any bets it will be because he’s in a mixed marriage and all the other legal precedents were regarding mixed marriage so HE has a stake in the outcome of Prop. 8?

Or maybe they’ll just attack him outright. Like they did the justices in Iowa.
We shall see, won’t we?

Timothy Kincaid
June 14th, 2011 | LINK


My guess is that NOM and ADF will peg Ware as a radical liberal activist judge along with a big picture so everyone can see that he’s black (and therefore obviously a radical activist out to push minorities ahead of The People). Nowhere will they mention that he’s a lifelong Republican.

Timothy Kincaid
June 14th, 2011 | LINK

thanks Donny

June 14th, 2011 | LINK

It must be a real bitch when a lawyer takes a case that’s really a pig in a poke and draws two judges in a row who know the difference between the constitution and a pig in a poke.

Mark F.
June 14th, 2011 | LINK


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