Judge Walker is Gay? Proposition 8 Case Ruling Impartiality in Question

The San Francisco Chronicle is reporting that the judge presiding over the Proposition 8 appeal, Judge Vaughn Walker, is gay:

“The biggest open secret in the landmark trial over same-sex marriage being heard in San Francisco is that the federal judge who will decide the case, Chief U.S. District Judge Vaughn Walker, is himself gay.

Many gay politicians in San Francisco and lawyers who have had dealings with Walker say the 65-year-old jurist, appointed to the bench by President George H.W. Bush in 1989, has never taken pains to disguise – or advertise – his orientation.”

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/02/07/BACF1BT7ON.DTL#ixzz0exke4PWC

If that is true, it would explain a lot.  Why was Judge Walker so eager to break federal court rules against televising hearings?  Why was he so eager to deny the defense their first amendment rights by trying to force them to disclose private campaign documents?

Twice now, higher courts have had to intervene in Judge Walker’s court proceedings to check his enthusiasm for tipping the scales of justice.

Could Judge Walker being gay himself have any bearing on his decisions?  We’ll never know.  As one commenter on this story said:

“He should have recused himself, just to avoid the image of impropriety. As it is, people will always wonder, and assume he made those bad judgments out of an inappropriate personal bias.”

Certainly a judge’s personal life and choices do not HAVE to interfere with his impartiality, however it certainly does color the appearance of his decision.

History will always question his judgment and wonder.  No matter what side of the issue you fall on, this information does nothing but cast doubt on the legitimacy of this court and its proceedings.

—Beetle Blogger

Advertisements

44 Comments

  1. Rosss said,

    February 8, 2010 at 10:44 am

    Are you implying that this is not a fair trial because the judge is not straight? So since the sexuality of the judge matches the prosecution and not the defense, its somehow a sham trial?

    Sounds like silly mudslinging of the judge’s reputation for no reason

    Let’s also note, Beetle, that Judge Walker did not CHOOSE this case. It was randomly selected for him. Perhaps God is on the SSM side, after all.

  2. beetlebabee said,

    February 8, 2010 at 11:01 am

    Did you read the post Rosss?

    Do you think he acted with perfect impartiality? That is why judges recuse themselves from cases to avoid even the possibility of a bad image. It hurts his case either way. If Judge Walker now rules against prop 8, people will suspect it is because of his own personal bias. If he rules FOR prop 8, people will wonder if he had something to prove. It’s a no win situation even before factoring in some of the decisions he made during the trial that the higher courts slapped him down on.

    You have to do quite a few logical acrobatics to dismiss some of the more obvious errors he made. The point is, he compromised the appearance of propriety by having such close ties to one side of the issue. He should have disclosed his conflict of interest, and recused himself if it was going to be an issue for him. As it is, whether he was impartial or not, people will always wonder.

  3. Rosss said,

    February 8, 2010 at 12:20 pm

    Beetle, totally unfair assumption. A judge should not have to excuse himself from a case about gay rights just because he is gay. Do you think a straight person should excuse themselves from the case because they are more partial to the defense?

    It works both ways.

    Also, Judge Walker is not confirmed to be gay. At this point you are reporting hearsay. It’s the same stupid mudslinging that happens on both sides. Remembers all those claims that Maggie Gallagher is a lesbian?

    It was luck of the draw. By your definition and your bias , ANY and EVERY gay judge should be removed from presiding over this case…which is…well..discrimination.

  4. beetlebabee said,

    February 8, 2010 at 12:30 pm

    Rosss, You are wrong if you assume that judges can’t be homosexual and still impartial. If you read the post, I very clearly point out that personal bias does not necessarily mean that his case was affected. However, you cannot deny that there is an appearance of bias because of how he acted. This was pointed out long before the Chronicle reported on his sexual orientation. The only person who knows if sexual orientation is an issue for certain is Judge Walker himself. If he did in fact have a conflict of interest in this case, he ought to have recused himself, the same as he ought to have done if he’d dated the prosecutor’s wife or had business dealings with Prop 8 defense witnesses. Whether those situations give rise to bias or not, you should avoid the appearance of bias whenever possible.

    Providing that the judge or presiding officer must be free from disabling conflicts of interest makes the fairness of the proceedings less likely to be questioned.

  5. beetlebabee said,

    February 8, 2010 at 12:32 pm

    Two sections of Title 28 of the United States Code (the Judicial Code) provide standards for judicial disqualification or recusal. Section 455, captioned “Disqualification of justice, judge, or magistrate judge,” provides that a federal judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” The same section also provides that a judge is disqualified “where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding”; when the judge has previously served as a lawyer or witness concerning the same case or has expressed an opinion concerning its outcome; or when the judge or a member of his or her immediate family has a financial interest in the outcome of the proceeding.

    28 U.S.C. sec. 144, captioned “Bias or prejudice of judge,” provides that under circumstances, when a party to a case in a United States District Court files a “timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of an adverse party,” the case shall be transferred to another judge.

    The general rule is that to warrant recusal, a judge’s expression of an opinion about the merits of a case or familiarity with the facts or the parties must have originated in a source outside the case itself. This is referred to in the United States as the “extra-judicial source rule” and was recognized as a general presumption, although not an invariable one, in the 1994 U.S. Supreme Court decision in Liteky v. United States.

    http://en.wikipedia.org/wiki/Judicial_disqualification

  6. Lisa~ said,

    February 8, 2010 at 12:33 pm

    Ross,

    gays are not partial in any way when it come to what they want to shove down our throats. They dont care what they have to do (legal or illegal) to get it.

  7. Rosss said,

    February 8, 2010 at 1:51 pm

    Beetle: “If you read the post, I very clearly point out that personal bias does not necessarily mean that his case was affected. However, you cannot deny that there is an appearance of bias because of how he acted.”

    Double talk. Which is it? He’s biased or not?
    The thing I find hilarious about the whole situation, is that people claim God is against SSM…and yet, if this is the case, and if Judge Walker is gay (which he may not be)….The case was given at random to him.

  8. beetlebabee said,

    February 8, 2010 at 1:58 pm

    You can claim it’s double talk all you want. You can’t deny the fact that twice he was slapped down for questionable rulings he made in the plaintiff’s defense. It appears that even the higher courts believed his judgment to be questionable. Now this comes out, and the speculation as to why finally has an answer that is all too plausible.

    Did he act the way he did because of his own personal bias? The world may never know, but they will always suspect, and that is what recusing would have done for this case. If it turns out that the San Francisco Chronicle is right, it would clearly have been a stronger case for the plaintiffs if they didn’t look like they had an inside guy out there putting his thumb on the scales.

  9. Giles said,

    February 8, 2010 at 2:42 pm

    Wow, this explains a lot doesn’t it? If I were the gay activist community, I’d be pretty upset about this news coming out just before the ruling.

  10. Rosss said,

    February 8, 2010 at 2:55 pm

    Beetle, same could be same if it was a straight judge. One could just as easily say that he was biased because of his sexuality if it comes down on the No side of things.

    “it would clearly have been a stronger case for the plaintiffs if they didn’t look like they had an inside guy out there putting his thumb on the scales.”

    An inside guy? The case was, AGAIN, given to him at random. Put the conspiracy theories away.

  11. beetlebabee said,

    February 8, 2010 at 2:59 pm

    It doesn’t matter that the case was given to him at random. How he got the case is not at issue. What is at issue is what he did once he got the case, and why.

  12. Raynd said,

    February 8, 2010 at 3:03 pm

    This is going to present an easy weak point in their case. Judicial bias can easily be countered at the next level of appeals, but to say that the judge’s personal bias had no bearing on his ruling is a bit of a stretch.

    This undermines the credibility of the entire trial. In reading the San Francisco Chronicle article, it’s clear that they’re concerned with credibility. It makes you wonder why they did the article.

  13. Raynd said,

    February 8, 2010 at 3:27 pm

    It is somehow poetic though that for all Judge Walker’s fishing around in the private files of marriage supporters for hints of nefarious motivations that he would actually be the one with skeletons in the closet.

  14. Two Cents said,

    February 8, 2010 at 3:38 pm

    Sunday, February 07, 2010

    Judge Walker’s Skewed Judgment [Ed Whelan]

    “According to this column in today’s San Francisco Chronicle, “The biggest open secret in the landmark trial over same-sex marriage being heard in San Francisco is that the federal judge who will decide the case, Chief U.S. District Judge Vaughn Walker, is himself gay.”

    In terms of his judicial performance in the anti-Proposition 8 case, the bottom-line question that matters isn’t whether Walker is straight or gay. It’s whether he is capable of ruling impartially. I have no reason to doubt that there are homosexuals who could preside impartially over this case, just as I have no reason to doubt that there are heterosexuals whose bias in favor of, or against, same-sex marriage would unduly skew their handling of the case.

    From the outset, Walker’s entire course of conduct in the anti-Prop 8 case has reflected a manifest design to turn the lawsuit into a high-profile, culture-transforming, history-making, Scopes-style show trial of Prop 8’s sponsors. Consider his series of controversial — and, in many instances, unprecedented — decisions:

    Take, for example, Walker’s resort to procedural shenanigans and outright illegality in support of his fervent desire to broadcast the trial, in utter disregard of (if not affirmatively welcoming) the harassment and abuse that pro–Prop 8 witnesses would reasonably anticipate. Walker’s decision was ultimately blocked by an extraordinary (and fully warranted) stay order by the Supreme Court in an opinion that was plainly a stinging rebuke of Walker’s lack of impartiality.

    Take Walker’s failure to decide the case, one way or the other (as other courts have done in similar cases), as a matter of law and his concocting of supposed factual issues to be decided at trial.

    Take the incredibly intrusive discovery, grossly underprotective of First Amendment associational rights, that Walker authorized into the internal communications of the Prop 8 sponsors — a ruling overturned, in part, by an extraordinary writ of mandamus issued by a Ninth Circuit panel consisting entirely of Clinton appointees.

    Take Walker’s insane and unworkable inquiry into the subjective motivations of the more than 7 million Californians who voted in support of Prop 8.

    Take Walker’s permitting a parade of anti-Prop 8 witnesses at trial who gave lengthy testimony that had no conceivable bearing on any factual or legal issues in dispute but who provided useful theater for the anti-Prop 8 cause.

    And so on.

    Walker’s entire course of conduct has only one sensible explanation: that Walker is hellbent to use the case to advance the cause of same-sex marriage. Given his manifest inability to be impartial, Walker should have recused himself from the beginning, and he remains obligated to do so now.”

    AMEN!

  15. Two Cents said,

    February 8, 2010 at 4:08 pm

    from NOM:

    “In a story this Sunday (Feb. 7), the San Francisco Chronicle reported that Prop 8 Judge Vaughn Walker is gay and called his orientation, “The biggest open secret in the landmark trial over same-sex marriage.”

    We have no idea whether the report is true or not. But we do know one really big important fact about Judge Walker: He’s been an amazingly biased and one-sided force throughout this trial, far more akin to an activist than a neutral referee. That’s no secret at all.

    Protect Marriage, the defendants in this case are effectively being held hostage by Judge Walker and cannot really comment.

    But Judge Walker’s bias from the bench includes:

    A series of rulings permitting deep and deeply irrelevant “fishing expeditions” into the private and personal motivations and secret campaign strategy of campaign proponents. It wasn’t six guys at Protect Marriage that passed Prop 8 it was 7 million Californians. But Judge Walker went so far as to order the Prop 8 campaign to disclose private internal communications about messages that were considered for public use but never actually used. He even ordered the campaign to turn over copies of all internal records and e-mail messages relating to campaign strategy.

    Even though the Prop 8 supporters were forced to turn over private, internal documents and emails, Walker has refused to demand the same from opponents of the measure. In fact, Walker has refused to even rule on a motion to compel the discovery of this information, even though he has already closed testimony in the case. That alone is an unbelievable tilting of the playing field.

    Walker has presided over a show trial designed to generate sympathetic headlines and news coverage for gay marriage supporters. Witness after witness was allowed to testify about their “expert” opinion that homosexuals have been discriminated against, that they feel badly when society does not validate their relationships, and that the passage of Prop 8 was simply an echo of historic prejudice and bigotry foisted on society by religious zealots.

    To show the lengths that Walker has gone to create a “record” favoring the plaintiffs, he even allowed one “expert” witness — a gay man from Colorado who has never lived in California and was never exposed to any Prop 8 campaign messages — to testify that his parents’ efforts to change his sexual orientation failed.

    But the most egregious, and damaging, of all of Judge Walker’s rulings was his determination to violate federal rules to broadcast his show trial worldwide. The US Supreme Court eventually blocked Walker’s efforts (and rapped his biased knuckles sharply!) finding that he improperly changed the rules “at the eleventh hour” in violation of federal law. (Unfortunately, however, but by the time the Supreme Court issued a permanent stay two days into trial, the supporters of Prop 8 had already lost two-thirds of their expert witnesses who feared retaliation from the publicity).

    Judge Walker’s bias has been so extreme, he’s earned a rare judicial “twofer.” Key elements of his “fishing expedition” rulings were already reversed by the Ninth Circuit Court of Appeals (notably one of the most liberal in the nation) and the Supreme Court had to step in to block his illegal attempt to broadcast the trial.

    It is highly unusual for a higher court to have to intercede in a trial judge’s handling of a trial while it is going on — yet Walker has had that “distinction” twice in the same case — and we’re not yet even at closing arguments.

    There’s only one saving grace to Judge Walker’s bias. It’s so big, and so obvious, not only the American public but the Supreme Court itself is already aware we have bias in the trial judge presiding.”

    AMEN!

  16. Chairm said,

    February 9, 2010 at 6:04 am

    Ross, do you believe that there are good reasons for gay men to have voted for the CA marriage amendment and against the unanimous position taken by the pro-gay groups during the campaign?

    If not, why not?

    This goes to identity politics, which the leading gay activists openly embrace as central to their political and their legal strategy to advocate SSM.

    Do you believe that a judge who happens to be gay (whether or not this particular judge is in fact gay identified) has done damage to the judicial process by creating a ‘fact-finding’ investigation of the motivations of those accused of anti-gay animus?

    Remember, the context is the judicial duty to ensure fair treatment of the litigants.

  17. Chairm said,

    February 9, 2010 at 6:08 am

    I repeat: this is about the judicial duty to ensure fair treatment of litigants.

    It is not first about fair treatment of the individual judge. That sort of consideration will always be secondary to the individual judge’s obligation to the impartiality of the judicial process.

  18. Sulla said,

    February 10, 2010 at 6:08 am

    This all seems a little too cute.

    My question is what kind of surety do we have that the select of Judge Walker was random? I know that 50 years ago there were some cites were a little grease on the palms of the right clerk would assure you the judge you wanted. (Not that the judge knew about it or was involved, you just made sure to get the judge most likely to be sympathetic to the arguments you had to make).

    Maybe in the 50 years since there has been an improvement in security of such things. Or maybe the federal courts have it set up differently. But I find it very convenient.

    I don’t believe in conspiracy theories, but this would not require any great conspiracy or anything. Just a person who knew Judge Walker’s orientation and assumed that it would give the opponents of Prop 8 a slight edge. If that person also knew the right clerk who was also sympathetic to their cause and/or susceptible to corruption- that’s all it would take. No secret conspiracy of dozens to manipulate an orchestrated outcome. Just a single man with the motive and opportunity to give his side a slight edge by ensuring a judge most likely to be sympathetic to their cause.

  19. Juno said,

    February 10, 2010 at 1:37 pm

    In order for our judicial system to be effective citizens must have at least some faith that the court’s decisions are arrived at fairly and without bias. How will the voters in California and other parts of the country react should Judge Walker choose to overturn Prop 8 given this revelation that he is in fact gay. It doesn’t take a lot of mental gymnastics to conclude that this judge has a vested interested in the outcome of this case. At the very least, a ruling to uphold Prop 8 will certainly affect the lives of his gay friends and associates. For that reason alone he should have recused himself. I have no idea if Judge Walker can be impartial or not. I certainly hope so, but as in most things, appearance is everything.

  20. Rosss said,

    February 11, 2010 at 6:49 am

    This all seems to be completely made up hogwash as the Anti-SSMers scramble to make excuses for their poor defense. Despite everything, ANYONE without bias can look at the court transcripts of the trial and see that the defense had an incredibly weak case, and that both of their defendants were practically shredded by the prosecution.

    So instead of faulting the defense attorneys…now it’s time to make excuses. The judge is biased! The judge is gay! The judge paid off the clerk to get the case!

    Hey, whatever you anti-SSMers need to tell yourself to sleep at night, go for it.

  21. beetlebabee said,

    February 11, 2010 at 12:30 pm

    It’s up to you what fairytale you believe Rosss, but Judge Walker’s rulings in the trial are public knowledge, as are his very public rebukes by two separate higher courts. He violated court rules. Whether you choose to see it or not is your choice, and frankly only betrays your own bias. Did the proposition 8 supporters out Judge Walker? No. It was the very liberal, very gay, San Francisco Chronicle.

    Think what you like. The facts are straight against you.

  22. Ross said,

    February 11, 2010 at 4:46 pm

    And you are free, Beetle to engage in witch hunts and conspiracy chasing.
    THe “facts” are not straight against me, because it is not a “fact” that Judge Walker is gay.
    So feel free to live in your fairytale land and ignore the fact that the defense did an absolutely shoddy job presenting their case.
    Seems like you and the rest of the SSMers are merely grasping at straws, trying to find the quickest and easiest scape goat.

  23. Ross said,

    February 11, 2010 at 5:42 pm

    *rest of the anti-SSMers i mean

  24. Chairm said,

    February 11, 2010 at 11:11 pm

    Ross, BB listed a few items in her latest comment but, contrary to your reply, she has not stated as a fact that Judge Walker is gay.

    * * *

    However if he is ‘secretly-openly’ gay identified, then, it is relevant in the context of this particular trial in which the Judge has decided to invetigate personal motivations in search of “anti-gay” animus.

    It is relevant also in the sense that most SSMers concede that being gay is a very strong predictor of a person being against the CA marriage amendment.

    Now, sure, a judge who is ‘secretly-openly’ gay identified and who is personally against the CA marriage amendment, could potentially perform his judicial duties impartially and ensure fair treatment of the litigants in a case like this one. But the lack of impartiality has become an issue even before the SF Chronicle reported that this particular judge is ‘secretly-openly’ gay identified.

    Add to all of this the routine way in which SSMers denounced as ‘homophobic’ those judges who have written opinions that reject the pro-SSM argument. To disagree with SSM is itself supposed to be an act of hatred and bigotry and animus.

    SSMers, such as yourself Ross, can’t keep having it both ways.

  25. Rosss said,

    February 12, 2010 at 5:35 am

    Chairm, Im not what you mean by “having it both ways”…but then again, its not a shock to see more bloated rhetoric coming from you.

    Tell me, Chairm, do you REALLY unbiasedly think that the defendants in the trial had a better case than the prosecution? I dont think anyone can look at the case and evidence presented and NOT think that the defense and defense witness took far greater hits than the prosecution.

  26. Marius said,

    February 12, 2010 at 7:26 am

    I find this very disturbing. I found just the attempt to overturn this democratic outcome by judicial fiat to be disturbing- learning that the judge has a bias just increases my concern.

    I remember when I was a young man, back in 1992 or 93, the don’t ask don’t tell policy had just been implemented among a lot of controversy. I was reading a gay political magazine, in which an editorial was written in response to the failure of President Clinton to allow gays to serve openly in the military.

    It detailed a plan of action calling first for agitation for civil unions followed by gay marriage, followed by removing the ban on gays openly serving in the military, followed by the use of anti-discrimination laws to interject the judiciary into the promotion process so that gay men can rapidly rise in the ranks. (Large numbers of colonels was the stated goal). At which point there would be nothing to stop them from “oppressing the Christians as they have oppressed us”.

    It was actually quite chilling. It was almost like reading Mein Kampf. But I dismissed it as the crazed rantings of a gay man who was enraged at the discrimination he’d experienced. An understandable case of venting through fantasy.

    After all… gay marriage? That was just crazy talk- it would never happen.

    Fast forward 18 years and I’m now becoming a little nervous about the whole thing. I mean, generally I’d be supportive of allowing gay men to serve openly in the military, but this whole gay marriage fiasco is giving me pause. There has been an incredible disrespect for the democratic process from the gay movement. This aspect of a gay judge acting to overturn the will of the people’s vote- it’s nothing short of a violation of every democratic principle I can think of.

    I look at this, and I see that angry man’s predictions coming true and I begin to feel very uncomfortable with gay officers. If a gay judge will abuse his authority in this fashion, what about gay officers, will they also abuse their authority?

    And it’s not only gays. In the last several months I have seen numberless articles on the left complaining about America being “too democratic” or how “democracy doesn’t work anymore”, or claiming that America is “ungovernable”. All this despite having won the last election and being in total control. If this how they talk when they’ve won how will the act when they lose?

    Taken one by one they are nothing, but taken all together it smacks of creating an intellectual justification for a coup. Whose side will the military take in the coming confrontation between the elected branches of government and the unelected judges?

    I’m sorry, I know conspiracy theories are usually bogus… but there have been actual successful conspiracies in the past. Not even the distant past. Lenin was essentially the leader of a successful conspiracy. And the thing was that conspiracies like that succeeded not because they successfully concealed their intent, but rather it was just so audacious that nobody could believe they would really do something like that.

    I have to say I’m really worried. Not about the near future, but about what is going to happen in another 30 to 40 years.

  27. beetlebabee said,

    February 12, 2010 at 9:25 am

    Rosss, what does your opinion on the quality of the witnesses and evidence have to do with the judge being biased or unbiased?

  28. beetlebabee said,

    February 12, 2010 at 9:29 am

    Marius, every moral ideal has a logical end, and from the tolerance I’ve seen coming out of those leading the gay agenda, I’d have to say that this is indeed an anti-freedom, pro supremacy group of people.

  29. Rosss said,

    February 12, 2010 at 9:42 am

    Beetle, because the quality of the witnesses has proven to be extremely lackluster. The judge being biased, unbiased, gay, an alien, a crossdresser, a clone or WHATEVER is all just silly scapegoat talk to avoid the issue at hand:

    The defense dropped the ball. Period.

  30. beetlebabee said,

    February 12, 2010 at 1:41 pm

    I don’t know Rosss, sounds like a dodge to me. You can’t defend the judge’s actions, the fact that he was slapped down twice by higher federal courts including the Supreme Court itself, the fact that his errors may be due to bias, or because of his personal sexual proclivities, so you presume to step into his shoes and do the judging yourself. Interesting twist, though having read your many dodges and weaves, I doubt you are any less biased.

  31. Rosss said,

    February 12, 2010 at 3:31 pm

    Coming from a woman who sees the case through rose-colored glasses and STILL can not admit the defense’s case was lackluster..perhaps I took dodging lessons from the same school you did ;)

    And as for the previous “slapping” downs you refer to. They also were merely sad pathetic attempts by the Anti-SSM side to make scapegoats and excuses for their shoddy defense. You can sit there all you want and whine about how the defendants dropped out because they felt threatened…but regardless, these “defendants” have stated their cases times before. Their names would be published, HAVE been published, as would the court transcripts with or without television airing of the court. Anyone who wanted to find them easily could, with or without their faces being broadcast.

    Anti-SSMers like to see the case with blinders on. “It’s the judge’s fault! He’s unruly, gay, biased, etc!” Instead of seeing the inherent weakness in the defense’s plan..which is why so many witnesses dropped out, not because of retribution. But then of course, you all need SOMEONE to blame. So why not the judge. Or the prosecution.

  32. February 12, 2010 at 4:43 pm

    Hypothetically, if one was called to do jury duty on some kind of a trial like this and admitted they were gay, wouldn’t they likely be excused from the call because they may not be able to render fair and impartial judgment? Isn’t it right that the judge would hold himself to the same standard he expects in his court?

  33. beetlebabee said,

    February 12, 2010 at 8:05 pm

    “And as for the previous “slapping” downs you refer to. They also were merely sad pathetic attempts by the Anti-SSM side to make scapegoats and excuses for their shoddy defense.”

    So you really think that the 9th Circuit Court of Appeals and the United States Supreme Court are both in the pocket of Yes on 8? Delusional much?

  34. Rosss said,

    February 13, 2010 at 5:22 am

    Cura, that logic doesnt work. If that were the case then any juror admitted they were straight they would likely be excused because of lack of impartial judgement. So no gay jurors. No straight jurors. No jury.

  35. Chairm said,

    February 13, 2010 at 11:15 pm

    Ross’ attitude was displayed in court, and on the record, by the anti-8 litigators, which, unfortunately for Ross, is an example of their dropping the ball big time.

    Criticism of Walker’s performance began long before the SF Chronicle published the account of Walker’s openly-secret gay disposition.

    Most critics, including myself, did not know he was so disposed, when I criticized Walker’s early examples of his dropping the judicial ball.

    But, Ross, you can’t deny that being gay is a very strong predictor of being against the CA marriage amendment. And you can’t deny that the anti-8 litigators have tried to make the case that personal motivations, rather than the amendment itself, are on trial in the name of supposed animus. It is all rather circular.

    Anyway, Walker’s so-called fact-finding investigation is ludicrous on its face. And, no matter what facts he might package from this inquiry into personal motivations, such legislative facts are not dictated by the judge’s bench trial. Rather, the appellate judges will assess the facts — as germane or not, as useful or not, as carrying meaning or not — and won’t be obligated to defer to the trial judge. That goes right up to the Supreme Court.

    So the judge is pretty irrelevant in terms of the actual question of law, even if we took as valid the anti-8 litigator’s legal strategy. It is not valid, it is just a political strategy portrayed in the courtroom.

    On the other hand, the anti-8 litigators have not shown that the amendment is unconstitutional. And Walker is not empowered to over-rule the Supreme Court’s precedents on this very question of law.

    Walker has continue to record the proceedings because he will keep alive the possibility of later televising and/or disseminating the recording. The four witnesses who dropped-out siad they would; and that, in a fair trial, would have been more than enough for the judge to have stopped the attempt to televise/disseminate. Indeed, the fact that even one witness dropped out should have been enough for the judge to stop the recording.

    There is no excuse for the bias. None. Not even the anti-8 litigators’ political strategy is an excuse for a judge who is duty-bound to ensure fair treatment of litigants on both sides.

    Ross, your bloated rhetoric is like that dead parrot in the Monty Python sketch.

  36. beetlebabee said,

    February 14, 2010 at 8:59 am

    “Cura, that logic doesnt work. If that were the case then any juror admitted they were straight they would likely be excused because of lack of impartial judgement. So no gay jurors. No straight jurors. No jury.”

    Ross, I think this goes back to our earlier conversation. You didn’t believe that anyone who was gay would vote FOR proposition 8. If that is the case, you admit their inability to impartiality on this subject. If however, you look at “straight” votes, even you admit they fell both ways. Why is that?

  37. Smokezero said,

    February 14, 2010 at 9:42 am

    [i]“Cura, that logic doesnt work. If that were the case then any juror admitted they were straight they would likely be excused because of lack of impartial judgement. So no gay jurors. No straight jurors. No jury.”[/i]

    This statement does not work, because one would assume that all straight people voted Yes on 8 because of sexual orientation. This obviously did not happen.

    Impartial judgment has little to do with the orientation, and more to do with the strength of conviction one has towards a particular issue. Unfortunately, a judge recusing himself would take a lot more humility than Mr. Walker has shown. One would need to know that their judgment has been compromised, and accept that fact openly. I waver in my support of proposition 8, I pride myself on being right in the middle, but I do see that Judge Walker’s actions have not been in the best interest of the courts.

  38. Rosss said,

    February 14, 2010 at 2:36 pm

    Chairm: But, Ross, you can’t deny that being gay is a very strong predictor of being against the CA marriage amendment. And you can’t deny that the anti-8 litigators have tried to make the case that personal motivations, rather than the amendment itself, are on trial in the name of supposed animus. It is all rather circular.

    Chairm werent you the one who months ago was spewing bloated rhetoric over and over again about how “SO MANY” gay people voted FOR Prop 8? Now you are heavily implying that since all gay people are against it, Judge Walker is obviously biased. Which is it, Chairm? You cant have it both ways
    You remind me of a whiny kid who’s playing dodgeball who is completely backed into a corner.

  39. beetlebabee said,

    February 14, 2010 at 9:00 pm

    actually Rosss, it’s just the opposite. You were claiming no one who was gay could possibly have voted FOR prop 8. Don’t blame your woes on Chairm, he didn’t force you into that position. You went there of your own accord.

  40. Chairm said,

    February 14, 2010 at 10:35 pm

    Ross,

    Can you supply this discussion with a few good reasons that a gay person would be for, rather than against, the CA marriage amendment?

    Olson and crew have said they’ve come across no good reason. SSMers, far and wide, assume that being gay is the strongest predictor of being against the CA amendment. As BB reminds, you are among those who has said that.

    What I said about the gay voters who cast Yes votes is that they exist even though the SSM campaign operates on the assumption that they cannot exist. That the exit polls support the fact that gay Yes voters exist AND that being gay is the strongest predictor of being against the amendment, well, that is not a problem for what I’ve said here, Ross.

    It is a big problem for what you have said.

    Anyway, the Walker’s behavior raises serious doubts about his impartiality. If he is openly-secretly gay, then, it provides a plausible socio-political reason — some SSMers might go so far as to say it is justification — for his behavioral bias against the defendants and in favor of the plaintiffs.

    But such a socio-political reason (or justification) is extra-judicial. Hence the obvious concern in terms of the process.

    I think that the anti-8 litigators have thrown the dice. They think that no matter what Walker does, the case will be appealed. The chances that Walker would rule against the amendment, on the question of law, is, I think fairly remote. However, he can try to make a political statement in his written opinion, as he has done in his conduct of this trial, and that can be used politically — i.e. outside the courtroom — by the SSM campaign. It will carry no weight in the appeal process. Because it is extra-judicial.

    Whether or not Walker’s moves would actually prove to supply political advantage is up in the air. If he decides, on the question of law, that the amendment is constitutional, then, all his extra-judicial bias — and his big thumb on the scales of justice — would backfire.

    It will be said, for example, that even with all the advantages the Walker created for the anti-8 litigants, and even with all the disadvantages Walke put before the defendants, the law is the law is the law. And a loss like that would carry the potential for immense political damage to the SSM campaign.

    Before Olson intruded, the courtcentric side of the SSM campaign had made that assessement on its own. Some prominent SSMers have voiced caution and concern on that same basis.

    So Walker is given this case to consider. He can’t do much to over-rule the US Supreme Court. But maybe he can set a political stage; leave his mark on the “evidence”; and make a political statement with his written opinion. You know, try to do his part for the identity group. Maybe.

    I think that would be bad for the judiciary, bad for Walker, and bad for the public discourse on the marriage issue. It would be bad for the SSM campaign. It would be bad for everyone I think.

    But it would be *the least bad* for the defense of marriage.

    Walker’s recusal would be a wise move. His removal, a harsh but wise move. Leaving him there to do this damage?

    I can’t find much satisfaction in this farce causing much more harm to opponents of marriage than to defenders of marriage. It is a no win scenario overall.

  41. Rosss said,

    February 15, 2010 at 9:34 am

    Actually, you are incorrect. Whether or not a person VOTES for an amendment is completely different than whether or not a person can do their JOB (in this case, approach a case from an unbiased perspective in order to provide a ruling).

    People do it all the time. Doctors treat patients who are murderers, even if they dont necessarily agree with it because it is their job.

    When a person steps into a voting booth and votes their conscience that is their personal vote. It is very very different than doing one’s job. If the anti-SSMers found out that Judge Walker had donated to No On 8 or something similiar, then yes, perhaps, he should be recused. But right now they are resorting to mere mudslinging about his sexual orientation.

  42. beetlebabee said,

    February 15, 2010 at 11:33 am

    Is the San Francisco Chronicle on the payroll of Yes on 8? Who is resorting to mudslinging?

  43. Chairm said,

    February 15, 2010 at 4:16 pm

    Ross, either you don’t read what people actually say, or you misread, or you misrepresent deliberately.

    Earlier you claimed BB said something she did not say. She did not say it was a fact that Walker is gay.

    The SF Chronicle said that.

    Now you say that I am incorrect for having said something that I did not say.

    I did not say that a gay judge, by being a gay person, could not peform impartially on this sort of case.

    I did point out that Walker has not performed impartially. Gay or not.

    And I did point out that your own side has provided the socio-political justification and have failed to provide the judicial justification for that impartial performance.

    When SSMers, like yourself, concede that being gay is a very strong predictor of being against the amendment, it is also said, matter of factly, that’s because the argument is that the amendment is de facto an instance anti-gay animus.

    So now you are pretending that if, as reported by SF Chronicle, Walker is openly-secretly gay, that is irrelevant to 1) his impartial performance and 2) your own anti-amendment argument.

    * * *

    Smokezero hit the nail on the head.

    * * *

    As has been said earlier:

    “Now, sure, a judge who is ’secretly-openly’ gay identified and who is personally against the CA marriage amendment, could potentially perform his judicial duties impartially and ensure fair treatment of the litigants in a case like this one. But the lack of impartiality has become an issue even before the SF Chronicle reported that this particular judge is ‘secretly-openly’ gay identified.'”

    * * *

    As BB said, according to you Ross, the SF Chronicle is mudslinging.

    I will ask you to give good reasons that a gay person would support the CA marriage amendment.

    I will lask you, again, if you believe that a district trial judge is empowered to over-rule the US Supreme Court.

    * * *

    BB, I’ll step off and leave Ross to ponder the possibility that the SF Chronicle is mudslinging at good Judge Walker.

  44. Neil Ross said,

    September 14, 2010 at 12:06 pm

    Enough bashing each other-the whole point is a gay or biased Judge is challenging the Judicial systems and the Constitution by using his power in an illegal fashion by striking down a law voted by the majority of the people. It has been shown he is biased and should not be making decisions against a law he disapproves of for personal reasons. This is abuse of power and should not be tolerated.


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: