April 26, 2011
By Adam Bink
A roundup of some interesting notes and analysis pieces this morning.
From SCOTUSBlog (bolding mine on the process parts):
In the new maneuver, the opponents of same-sex marriage relied upon comments that Walker had made in April, after his retirement, to a group of reporters, acknowledging publicly for the first time that he had been engaged in a ten-year same-sex relationship with a doctor. The motion asserted that the opponents were “not suggesting that a gay or lesbian judge could not sit on his case.” Rather, they argued that Judge Walker had a personal interest in the outcome of the case, because he may wish to marry his partner if Proposition 8 no longer exists. At a minimum, the motion argued, he should have disclosed that relationship and whether he has any interest in marriage so that the parties in the case could evaluate whether to formally demand that he step aside under federal laws governing such disqualifications.
To help bolster their argument that Walker’s impartiality is clearly open to question, the motion listed a series of actions that he had taken during the progress of the case, and then commented: “The unprecedented, irregular, and/or peremptory nature of these rulings is difficult — very difficult — to take as the product of an objective, impartial judicial mind.” While conceding that judicial rulings by themselves almost never amount to a valid basis for a disqualification demand, these rulings, it said, “are nevertheless highly relevant to the inquiry” under federal law.
Technically, the proposed order that the opponents filed with their motion would have Judge Ware declare that he “would grant” the motion to wipe out the ruling, so that the opponents could then go to the Circuit Court and ask it to send the current appeal back to him for that purpose.
At the Circuit Court, aside from the pending motion to permanently seal the videotape of the trial, the case is in an inactive state while the Circuit Court panel awaits a ruling — not expected until this Fall at the earliest — from the California Supreme Court on an issue of California state law that may influence whether the Proposition 8 backers’ appeal against the Walker ruling can proceed. Of course, if the motion to vacate were ultimately granted, that would end the case, although an appeal of that would surely be pursued by the two same-sex couples who filed the successful challenge to Proposition 8.
A baseball analogy from The Atlantic’s Andrew Cohen, former chief legal analyst for CBS News and Murrow Award winner, in a piece titled “Why the New Prop 8 Argument is Bogus — And Offensive”:
The legal argument that a veteran federal judge cannot fairly preside over a trial involving gay marriage because he is gay and in a relationship is so preposterous that it requires me to use a sports analogy to express my disdain. I know: Now-retired U.S. District Judge Vaughn Walker, first appointed by President Reagan and then re-appointed by President George H.W. Bush, surely deserves better than that for his patient work on the Proposition 8 case. But it’s the best I can do in the circumstances.
So let me take you to the baseball diamond. It’s the Yankees versus the Red Sox (don’t read anything into my selection of teams, pick your own if you’d like). The Red Sox are crushing their opponents. It’s 15-0 in the 6th inning. The Yankees’ pitchers aren’t pitching and the Yankees’ hitters aren’t hitting. The bases are loaded with Sox and New York manager Joe Girardi decides after a visit to the mound notto replace his pitcher, who has been battered about like a rag doll by Boston’s hitters.
What we have here with this new argument, then, is a vestige of the very bias and bigotry that gay and lesbian Americans have had to deal with for all these years.”Are you sure about that decision, Joe?” the home plate umpire politely asks Girardi as the manager begins to walk off the field. “I just want to make sure I’ve given you a chance to try something else.”
“We’re fine, ump,” Girardi responds. And the game continues. It ends 21-0. Eight months later, the Yankees find out that the umpire was dating someone from Boston. They immediately call Major League Baseball Commissioner Bud Selig and share with him their new evidence.
“The game was rigged!” the Yankees cry. “That ump had it in for us. The fact that he is dating someone from Boston creates a reasonable suspicion that he was unfair and called the game in favor of the Red Sox. The game should be a do-over.”
“But you guys got crushed,” Selig responds. “It was never a close game. What, possibly, could this umpire have done to influence the impact of this game more than he otherwise would do in the normal course of business?”
“He’s from Boston, judge,” the Yankees say. “That’s all you really need to know.”
That is the magnitude of the silliness we are talking about here. That’s how much of a rout last summer’s Proposition 8 trial was. And that’s why the argument, now made by some same-sex marriage opponents, is so dubious. Having lost on the merits, and with polls showing support for same-sex marriage growing, Prop 8′s tribunes want to vacate Judge Walker’s landmark ruling because he is gay and in a relationship. That’s right. Having come to court with virtually no evidence or arguments, having had their hats handed to them by same-sex marriage proponents David Boies and Ted Olson, Prop 8′s tribunes now are saying that they were jobbed by the umpire’s bias.
Judge Walker’s decision is going to stand or fall on appeal on its merits; whether the ballot initiative violated the equal protection rights of California’s citizens to marry their same-sex partners. It is going to be decided upon whether his findings of fact and conclusions of law were correct, and reasonable, and legally justifiable. It is not going to be decided by whom the judge is dating or what his sexual orientation may be. And it is certainly not going to be decided because a trial judge failed to disclose to the litigants before him who he was (or was not) seeing during the trial.
No reasonable person in America today would challenge a black judge by claiming he could not fairly judge a civil rights case. No reasonable person in America today would challenge a female judge claiming she could not fairly judge a case about women’s health. What we have here with this new argument, then, is a vestige of the very bias and bigotry that gay and lesbian Americans have had to deal with for all these years. How ironic that a case designed to eliminate official prejudice would generate such prejudice against an official. Like I said, Judge Walker surely deserves better than this offensive new wrinkle in the case of his lifetime.
P8TT friend and NCLR Legal Director Shannon Minter, in a statement, gets it right:
“This is a desperate and ill-advised move that underscores their inability to defend Prop 8 on the merits. This is not likely to win them any points with the courts, who understandably do not appreciate having the integrity of judges called into question based on such outrageous grounds. This is part and parcel of the underhanded way the Prop 8 campaign itself was run-based on lies, insinuations, and unsupported innuendo.”
Which is why, as I wrote last night, this may turn out to be a mistake.
Finally, if you missed it, Maggie’s prebuttal. Or something.
Any interesting takes you’re reading?
Update: A very good segment from KTVU in San Francisco, including Andrea from EQCA and Professor David Levine at UC Hastings.