Obsessed Proposition 8 Judge Vaughn Walker in News Again

Walker, anti-Prop 8 Lawyers “Cozy Relationship.”
 

On Friday, March 22 the blog Patterico’s Pontifications released emails from December 2012, in which Proposition 8 Judge Vaughn Walker asked a law partner of Ted Olsen, one of the two lead attorneys opposing Proposition 8 before the Supreme Court, to get Olsen’s opinion as to whether or not Walker should attend the Proposition 8 arguments. The arguments will begin to be heard this Tuesday in Washington, DC. The emails themselves can be found at Patterico’s site. Patterico writes:

“Although the emails likely breach no ethical rules — Walker retired in 2011 — they do suggest a cozy relationship between Walker and Olson that some observers may find revealing. Walker seeks Olson’s opinion regarding attending the argument, defers to Olson’s judgment, and praises Olson’s legal skills. Walker’s demeanor in the emails is that of a well-wisher who wishes to make sure Olson’s argument is not disrupted, rather than that of an impartial former jurist. It is difficult to imagine that Walker sent a similar email to the defenders of Proposition 8, seeking their opinion as to whether it would be appropriate for him to attend. Walker and Olson’s partner have not responded to requests for comment.”

Well, one can only “reveal” something if it is hidden. Walker’s bias, bordering on obsession, was apparent from the start. In an August 13, 2010 National Review article, attorney Ed Whelan, President of the Ethics and Public Policy Center, called Judge Walker’s behavior in the Proposition 8 case “The most egregious performance ever by a federal district judge.” Mr. Whelan then supplied a long list of Walker’s actions (a list which would grow after Whelan’s article was published) in support of his assertion. Walker’s behavior was so bad that even supporters of same-sex “marriage” in the legal profession had to sit up and rub their eyes to believe what they saw.

Professor of Constitutional Law Dale Carpenter, supporter of same-sex “marriage,” on Walker’s ruling that the defenders of marriage lack standing to bring the case:

"What Judge Walker's ruling means is you can sponsor a proposition, direct it, research it, work for it, raise $40 million for it, get it on a ballot, successfully campaign for it and then have no ability to defend it independently in court. And then a judge maybe let you be the sole defender in a full-blown trial and then says, 'by the way, you never can defend this.' It just seems very unlikely to me the higher courts will buy that.’”

Author Jonathon Rauch, supporter of same-sex “marriage,” on Walker’s “radical” ruling:

 “Now, I agree with Walker that gay marriage is unlikely to cause any significant social harm and will do much good. But the judge insists that the testimony of a handful of expert witnesses in his courtroom rules out the possibility of harm so definitively as to make any attempt at caution or gradualism irrational. The evidence, he holds, is ‘beyond debate.’”

Lawyer and ethicist Jack Marshall, supporter of same-sex “marriage,” on Walker’s failure to disclose he was in a long-term same-sex relationship:

"Reluctantly, I have to agree that his disclosure, a year after his ruling, that he was in a committed relationship with a man when he was ruling on Proposition 8 alters that conclusion. Weeks ago, former federal district judge Vaughn Walker, who ruled last summer in Perry v. Schwarzenegger that California’s Proposition 8 is unconstitutional, publicly disclosed for the first time that he has been in a same-sex relationship for the past ten years. A straightforward application of the judicial ethics rules compels the conclusion that Walker should have recused himself from taking part in the Perry case."

Patterico, also a supporter of same-sex “marriage,” closes by writing:

“This blog post is a piece of journalism, breaking a story that should be of public interest regarding the conduct of a former jurist on a significant case. This site does not advocate an anti-gay rights agenda, and the proprietor of this web site is a supporter of gay marriage (although he disapproves of the imposition of gay marriage on society through judicial fiat)…..But the behavior of Walker, as revealed by these emails, creates the appearance of a partisan rather than an impartial former jurist who simply believes he issued a correct ruling. Walker was so invested in his ruling that he wanted to watch the appellate courts’ argument himself. He went out of his way to make sure that he consulted with the winning side to help them prevail in the appellate courts. Specifically, he sought to learn whether his attendance at the appellate arguments would be acceptable to the prevailing party — and when told it would not be, he deferred to the prevailing party’s media strategy. All of this, cumulatively, suggests an emotional investment in the outcome of the case. The emails are likely to reinforce the widely held perception among Prop. 8 supporters that Walker was less than impartial in his rulings during the trial.”

We repeat: bias, bordering on obsession.

Posted by Gibbons J. Cooney

Marriage Unconstitutional, Judge Walker Says

All these centuries, marriage was unconstitutional. But it took an expert gay superman like Judge Walker to figure it out for us. In clarifying the agenda of the enemies of marriage and the family, his goofy decision supasses even my hopes.

Bill May of Catholics for the Common Good called the decision "Radical, But Instructive." Bill quietly stated "He may have overreached," then expanded:

"Judge Walker gutted foundational principles of democracy by seeming to say that citizens have no right to organize civil society using common sense unless it can be supported by scientific or sociological evidence. He decided mothers and fathers did not matter for children because other people could do just as good of a job raising them. He came up with a whole new definition of marriage as merely a committed relationship for the private interests of adults."

The bizarre ruling of course drew wide comment. As Carrie Severino, from the Judicial Crisis Network wrote:

"Judge Walker’s 138-page opinion overturning California’s definition of marriage presents such a target-rich environment that the hardest part about discussing its flaws is knowing where to begin."

I agree. So many scholars and writers are shredding Walker's opinion, it is hard to choose what to post, but here's a taste:

Cardinal Francis George, President of the United States Conference of Catholic Bishops:

“Marriage between a man and a woman is the bedrock of any society. The misuse of law to change the nature of marriage undermines the common good. It is tragic that a federal judge would overturn the clear and expressed will of the people in their support for the institution of marriage. No court of civil law has the authority to reach into areas of human experience that nature itself has defined.”

Archbishop Joseph Kurtz, Chair of the Ad Hoc Committee for the Defense of Marriage:

“Citizens of this nation have uniformly voted to uphold the understanding of marriage as a union of one man and one woman in every jurisdiction where the issue has been on the ballot. This understanding is neither irrational nor unlawful. Marriage is more fundamental and essential to the well being of society than perhaps any other institution. It is simply unimaginable that the court could now claim a conflict between marriage and the Constitution.”

Rich Lowry in National Review:

"Judge Walker’s decision is such a raw exercise of judicial imperiousness, he might as well have gone all the way and sentenced the defenders of Proposition 8 to suffer, Chinese-style, a parade of shame through the streets of San Francisco wearing placards emblazoned 'I Support Bizarre and Retrograde Social Practices.”

The social practice in question is traditional marriage defined as a union between a man and a woman, which Judge Walker finds dangerously passé. Sure, it had a good run during the past couple of millennia or so, but in August 2010, we’re beyond age-old parameters of fundamental social institutions — no matter what a majority of California voters might say, or the voters of the 29 other states that prohibit gay marriage in their constitutions....

All of that has been settled, and if you don’t believe it, well, Judge Walker said so. He describes traditional marriage as “an artifact of a time when the genders were seen as having distinct roles in society and marriage.” Behold the boundless power of Judge Walker — even gender distinctions can’t survive the awesome finality of his pronouncements."

Professor Gerard Bradley:

"We can now look at Judge Walker’s opinion and ask: is this the handiwork of an impartial and open mind on the subject of same-sex marriage?

Or does the opinion rather resemble an ad hoc rationale for conclusions reached by its author – Judge Walker – on other grounds?

You do not have to be a legal expert to conduct this experiment. You can even try it at home. Slog through Judge Walker’s 136-page opinion and then ask yourself: why does this document read like the battle report of a search-and-destroy mission?

One would think, for example, that there are some rational bases for saying that marriage is what our society and our law have understood it to be for a few hundred years: the union of a man and a woman. Not in Judge Walker’s court.

One might think, too, that some (and perhaps a lot) of what the plaintiffs’ “expert” witnesses against traditional marriage would be branded by a fair-minded judge as the fruit of passionate political advocacy, and not dispassionate scholarly analysis? Not in Judge Walker’s court."

And of course a number of articles by Ed Whelan, who was on to Judge Walker from the beginning.

Posted by Gibbons J. Cooney

Walker Digs Deeper and Deeper

Judge Walker's latest action just compounds and illustrates the arrogance of his original ruling.

Ed Whelan is all over it:

"Unbelievable: Judge Walker has denied the motion of Prop 8 proponents for a stay of his wild ruling against Prop 8 (with the exception of a stay for a limited time—until 5 p.m. on August 18—to enable proponents to seek Ninth Circuit review of the denial). In other words, he’s trying to implement same-sex marriage immediately—not only in the face of the more than seven million California citizens who voted for Prop 8 but also in an obvious effort to undermine the availability of appellate review as a meaningful corrective.

The heart of Walker’s rationale is that Prop 8 proponents may not even have standing to appeal. But if they don’t have standing to appeal, how did they have a right to intervene as defendants to present the defense of Prop 8? Why didn’t Walker simply enter a stipulated judgment (update: or more properly, as I hope to discuss more fully soon, dismiss plaintiffs’ case) when the state defendants abandoned their duty to defend Prop 8?"

Mr. Whelan also comments here.

Brian Brown from the National Organization for Marriage had this to say:

"When a lower judge makes an unprecedented ruling that totally overturns existing Supreme Court precedent, the normal thing for that judge to do is to stay his decision and let the higher courts decide in an orderly fashion that respects the rule of law whether he’s right or way off-base. Judge Walker’s ruling is more evidence that he is not a neutral referee but an activist on this issue.

He doesn’t even want his ruling — which ignores Supreme Court precedent and imposes gay marriage against the expressed wishes of the electorate — appealed to the Ninth Circuit. Walker feels that only the state politicians who were against Proposition 8 have standing to appeal, while the over 7 million California voters who supported Proposition 8 shouldn’t be able to even present their position to a higher court. It’s outrageous. The people are supposed to be sovereign, not the politicians."

Jack Smith, over at The Catholic Key:


"Federal District Judge Vaughn Walker today denied a motion to stay his ruling declaring Proposition 8 unconstitutional. His written justification for denying the motion provides ample evidence that Walker should have recused himself from the Prop 8 trial. In responding to the reasons Prop 8 proponents offered for a stay pending appeal, Walker shows himself to be merely willful and more than a little cutesy.

In addressing the argument that a stay is warranted given the proponents likelihood of success on appeal, Walker, astonishingly argues that the proponents likely don’t even have standing to appeal. Walker argues, “California does not grant proponents the authority or the responsibility to enforce Proposition 8.”

And here the cute begins. He argues that only the state has that authority:

In Lockyer v City & County of San Francisco, the California Supreme Court explained that the regulation of marriage in California is committed to state officials, so that the mayor of San Francisco had no authority to “take any action with regard to the process of issuing marriage licenses or registering marriage certificates.”

The right of citizens to defend a democratically enacted law in court is here rendered akin to Mayor Newsom’s unilateral and illegal decision to start issuing same-sex marriage permits, ie., both are illegitimate. Since only the state can regulate marriage, Walker argues, the only people with standing to challenge his ruling would be the governor or attorney general. Since neither of them are likely to do so, there is no likelihood of an appeal even progressing, Walker argues. So no stay.

This is really extraordinary – the implication being that if the people of a state pass a law that the governor doesn’t like, and a trial court (with an obviously biased judge) throws out the law, then the people have no right to appeal."

Legal Analysts on Both Sides Say Judge Walker Should have Recused Himself

Judge Vaughn Walker's revelation that he is in a long-term same-sex relationship has caused legal experts who both oppose and support his ruling in the Proposition 8 case to agree that he should have recused himself.

Ed Whelan makes the case:

"Two weeks ago, former federal district judge Vaughn Walker, who ruled last summer in Perry v. Schwarzenegger that California’s Proposition 8 is unconstitutional, publicly disclosed for the first time that he has been in a same-sex relationship for the past ten years. A straightforward application of the judicial ethics rules compels the conclusion that Walker should have recused himself from taking part in the Perry case. Further, under well-established Supreme Court precedent, the remedy of vacating Walker’s judgment is timely and necessary."

Mr. Whelan also says that Judge Walker's ruling should be vacated:

"Now that Walker has finally disclosed facts that would have warranted his disqualification from Perry, the appropriate remedy is for the Ninth Circuit — or, if necessary, the Supreme Court — to vacate Walker’s judgment upon a request by Prop 8 proponents. As the Supreme Court ruled more than two decades ago in Liljeberg v. Health Services Acquisition Corp. (1988), where a district judge has violated section 455(a) by deciding a case that he should have disqualified himself from, it is 'appropriate to vacate the judgment unless it can be said that [the losing party] did not make a timely request for relief, or that it would otherwise be unfair to deprive the prevailing party of its judgment.'”

Jack Marshall, a lawyer and ethicist who supports Walker's ruling agrees that Judge Walker should have recused himself:

"Reluctantly, I have to agree that his disclosure, a year after his ruling, that he was in a committed relationship with a man when he was ruling on Proposition 8 alters that conclusion. Weeks ago, former federal district judge Vaughn Walker, who ruled last summer in Perry v. Schwarzenegger that California’s Proposition 8 is unconstitutional, publicly disclosed for the first time that he has been in a same-sex relationship for the past ten years. A straightforward application of the judicial ethics rules compels the conclusion that Walker should have recused himself from taking part in the Perry case."

It's interesting that both experts, diametrically opposed on Walker's ruling, use exactly the same sentence to describe his unethical behavior.

Absent Divine Intervention, Judge Walker to Overturn Prop 8 Tomorrow

The San Francisco Chronicle is reporting that Federal Judge Vaughn Walker will issue his ruling tomorrow on whether to respect the will of California voters or impose counterfeit marriage on the state.

Given Judge Walker's actions in the courtroom, his verdict is not in doubt.

On February 7, 2010, legal analyst Ed Whelan shredded Walker's conduct, in National Review.
Whelan examines five "controversial--and in many cases, unprecedented decisions" by Judge Walker, and concludes:

"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."

That's why we never even bothered following it. We wrote back on January 25:

"We haven’t commented on the issue much, or even followed it, because it seems to be mostly a propagandistic exercise in narcissism. The "trial" has the same relationship to a real trial as same-sex "marriage" has to real marriage."

The case will eventually reach the Supreme Court.

Retired, Judge Walker Continues Unethical Behavior

From the great legal analyst Ed Whelan comes this news on the latest from retired Judge Vaughn Walker.

Vaughn Walker’s Continuing Defiance on Prop 8 Trial Recordings

"One of the clear early signs of former district judge Vaughn Walker’s determined malfeasance in the anti-Prop 8 case was his resort to procedural shenanigans and outright illegality in furtherance 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 escapade was 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:

'The District Court attempted to change its rules at the eleventh hour to treat this case differently than other trials in the district. Not only did it ignore the federal statute that establishes the procedures by which its rules may be amended, its express purpose was to broadcast a high-profile trial that would include witness testimony about a contentious issue. If courts are to require that others follow regular procedures, courts must do so as well.'

Walker ended up recording the trial proceedings but, assuring Prop 8 proponents that he was doing so only for his own use in deciding the case, he ordered the video recording of the trial to be placed under seal. But, believe it or not, Walker himself recently publicly displayed and broadcast a portion of the video recording—containing cross-examination of one of proponents’ witnesses—notwithstanding that he thereby violated his own order and his court’s local rules, contravened the policies of the Judicial Conference of the United States and of the Ninth Circuit, and thumbed his nose at the Supreme Court."

Speaking of Mr. Whelan, he will be testifying on Friday, April 15 before the Constitution subcommittee of the House of Representatives’ Judiciary Committee at a hearing titled “Defending Marriage.” God Bless him!

Closing Arguments in Trial over the People's Right to Self-Government

Judge Vaughn Walker heard closing arguments today in the Proposition 8 trial. The real subject of the trial is the right of the American people to self-government. We wrote back on January 25:


"We haven’t commented on the issue much, or even followed it, oreven followed it, because it seems to be mostly a propagandistic exercise in narcissism. The "trial" has the same relationship to a real trial as same-sex "marriage" has to real marriage. Proposition 8 was never about gay people, it was about the common good of society. The attempt by homosexualist activists to deny self-government to the people of California through the ruling of one judge just proves the point: they are more interested in themselves than in the common good."


We do expect Judge Walker to rule for the plaintiffs, and the case to be appealed. His conduct has been outrageous throughout the trial. On February 7, Constitutional scholar Ed Whelan wrote in The Corner:


"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."


And as we reported back in February, Hastings Law School Professor Calvin Massey said the arguments made by the activists were "simply ludicrous" but also that he too expects Judge Vaughn Walker to rule in favor of the plaintiffs anyway, but also that it "does not matter a lot what Judge Walker does" because the case will be decided by appeal.

Ninth Circuit on Prop 8 Videos: Judge Walker Lied, Abused Discretion

So ruled the Ninth Circuit Court of Appeals today.

"The record clearly shows that Chief Judge Walker did make a commitment not to permit the public broadcast of the recording," Judge Stephen Reinhardt wrote for a three-judge panel."

Following his "commitment" he played a clip of the videos during a lecture at the University of Arizona! Following this, U.S. District Court Judge James Ware (the same one who ruled that Walker did not need to recuse himself for not disclosing he was in a long-term partnership with anther homosexual man) ruled the videos were public record. What a pair. Prop 8 backers appealed to the Ninth Circuit, resulting in today's ruling:

"The 9th Circuit agreed Thursday that Walker had abused his discretion in playing the tape, overturning Ware's ruling to unseal the recordings."

To the extent that Chief Judge Ware did believe that his predecessor's decisions were solemn commitments to the parties, but concluded nonetheless that they did not bind him, his abuse of discretion was even more serious: he failed to appreciate the importance of preserving the integrity of the judicial system..."

I repeat: what a pair. The great Ed Whelan weighed in on the decision:

"As I’ve said before, in the grand scheme of things Walker’s shenanigans on the video recording pale in comparison to his outlandish decision on the merits. But they are part and parcel of Walker’s broader course of misconduct in what deserves to be recognized as the most egregious performance ever by a federal district judge.

Alas, given the fact that Reinhardt and his fellow arch-liberal Michael Hawkins are two of the three judges on the panel, there is zero reason to imagine that this ruling offers any sign of hope for Prop 8 proponents on the other two appeals."

That's right. Reinhardt, who should have recused himself (see here, here, and here), and the others will almost certainly uphold Walker's ruling. Then, on to the Supreme Court!

No Counterfeit "Marriages" in CA for Now--Ninth Circuit Overrules Walker

The Ninth Circuit has reversed Walker's outrageous decision to allow same-sex "marriage" to be inflicted on the state while the case is being appealed. No big surprise.

"SAN FRANCISCO (Reuters) - A U.S. appeals court panel on Monday ruled that same-sex couples could not marry in California while the court considers the constitutionality of the state's gay marriage ban.

But the Ninth Circuit Court of Appeals panel set a relatively aggressive schedule for hearing the case, ordering lawyers to produce a series of briefs between Sept 17 and November 1.

The Monday decision by the appellate panel reverses a ruling last week by U.S. District Court Chief Judge Vaughn Walker, who had said marriages could resume while higher courts considered the matter."

UPDATE: Ed Whelan at National Review Online's "Bench Memos" continues his takedown of Judge Walker's behavior. Example:

"Back in January, Judge Walker originally arranged for the videotaping of the anti-Prop 8 trial as part of his unlawful plan to broadcast the trial. Walker’s broadcasting plans were ultimately thwarted by the 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:

'The District Court attempted to change its rules at the eleventh hour to treat this case differently than other trials in the district. Not only did it ignore the federal statute that establishes the procedures by which its rules may be amended, its express purpose was to broadcast a high-profile trial that would include witness testimony about a contentious issue. If courts are to require that others follow regular procedures, courts must do so as well.'"

More Good News: Ninth Circuit Says Prop 8 Case Judge "Probably Violated Constitution"

A late breaking story from the San Francisco Chronicle.

A three-judge panel from the Ninth Circuit Court of Appeals has suspended Judge Vaughn Walker's order that backers of Prop 8 had to disclose their internal campaign communications. Even the ACLU thought Judge Walker was out of bounds.

"Prop. 8 backers likely to win disclosure fight

(12-03) 17:48 PST SAN FRANCISCO -- A federal judge probably violated the Constitution when he ordered backers of Proposition 8, the initiative that banned same-sex marriage in California, to give their campaign strategy documents to opponents trying to overturn the measure, an appeals court said Thursday.

The Ninth U.S. Circuit of Appeals in San Francisco suspended the order that Chief U.S. District Judge Vaughn Walker issued in October against backers of Prop. 8, which state voters approved in November 2008.

Walker said lawyers for two same-sex couples and a gay-rights group were entitled to see internal memos and e-mails between Yes on 8 strategists to look for evidence that the campaign had sought to exploit anti-gay bias. Such evidence would strengthen the plaintiffs' claim that the ballot measure was discriminatory and thus unconstitutional.

Prop. 8 sponsors argued that their discussions were constitutionally protected and that orders such as Walker's would discourage candid communications in political campaigns.

The three-judge appeals court panel said the sponsors "have made a strong showing that they are likely to succeed" in their arguments. The court, which held a hearing on Walker's order on Tuesday, said it would issue a ruling soon."

"Manifestly not true as a matter of elementary recusal principles"

The great Ed Whelan goes to work on Judge Ware's opinion on whether or not Judge Vaughn Walker should have recused himself in the Proposition 8 case. Judge Ware's ruling will be appealed.

Mr. Whelan has two posts, addressing two aspects of Judge Ware's opinion:

"First, Ware determined that Walker was not required to recuse himself under section 455(b)(4) (of Title 28 of the U.S. Code), which requires that a judge recuse himself from a proceeding when the judge has any “interest that could be substantially affected by the outcome of the proceeding.” (Ruling at 5-12.) Second, Ware concluded that Walker’s recusal was also not required under section 455(a), which requires that a judge “disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” (Ruling at 12-19.)"

Whelan's post dealing with the first question is here, and the post dealing with the second question is here.

On the first question, Whelan writes, in part:

In addressing Prop 8 proponents’ argument that Walker’s long-term same-sex relationship in California meant that he had an actual interest in the case that he was deciding, Ware sets forth this “legal conclusion”:

In a case that could affect the general public based on the circumstances or characteristics of various members of that public, the fact that a federal judge happens to share the same circumstances or characteristic and will only be affected in a similar manner because the judge is a member of the public, is not a basis for disqualifying the judge under Section 455(b)(4). [Punctuation error in original.]

Applying this “legal conclusion” to Walker’s situation, Ware declares: “In particular, in a case involving laws restricting the right of various members of the public to marry, any personal interest that a judge gleans as a member of the public who might marry is too attenuated to warrant recusal.”

Taken on its own terms, Ware’s stated “legal conclusion” would compel the stunning result that a judge need not recuse himself from a case asserting an expanded right to marry even if it is crystal-clear that the judge desires to avail himself of the right that he is deciding whether to create. Under his reasoning, the fact that a judge “gleans” a “personal interest” only “as a member of the public” (rather than, as I understand it, as a party to the very case) somehow dictates the conclusion that his interest is “too attenuated to warrant recusal.”

Ware’s “legal conclusion” makes no sense. I’ve previously offered the hypothetical of a judge who desires to enter into a series of polygamous marriages and who is assigned a case in which plaintiffs are challenging the anti-polygamy laws of the state in which the judge lives. As I stated at the time, legal ethicist Stephen Gillers “acknowledges that the judge’s recusal would be required,” and “I find it difficult to imagine that there would be any legal ethicist anywhere who would maintain otherwise.” But Ware evidently would. Under his “legal conclusion,” the hypothetical case “could affect the general public based on the circumstances or characteristics of various members of that public”—the relevant characteristic of those various members being that they are aspiring polygamists—and the fact that the judge “happens to share” that characteristic “and will only be affected in a similar manner because the judge is a member of the public” (rather than a party to the case) “is not a basis for disqualifying the judge under Section 455(b)(4).”

On the second question, Whelan writes, in part:

"Ware contends that the case for Walker’s disqualification “depends upon the assumption that a judge who is in a relationship has an interest in getting married which is so powerful that it would render that judge incapable of performing his duties.” (Emphasis added.) He adds in a footnote that “the mere fact that an individual is in a relationship with a person does not necessarily imply that that individual is interested in getting married to that person at all.” (Emphasis added.) Indeed, he says that Prop 8 proponents’ supposed contention that “almost two-thirds of committed same-sex couples in California would get married if permitted to do so … suggests that more than one-third of such couples in California have no interest in being married.” (Emphasis added; brackets omitted.)

As the italicized passages show, Ware is blatantly stacking the deck by burying the “might reasonably be questioned standard” of section 455(a) (a judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned”) and replacing it with a much higher standard of incontrovertible proof of inescapable bias. That is not what section 455(a) says, and it is not what section 455(a) has ever been held to mean.

Amazing Physiological Changes Follow Judge Walker's Ruling--Homosexuals "Outraged"

Jeff Miller has the story:

Shocking result of Judge Vaughn Walker’s ruling

"(Roto Reuters) SAN FRANCISCO – More fallout continues from Judge Vaughn Walker overturning of California’s Proposition 8 on grounds that it was unconstitutional. While the legal case will continue on in the courts a surprising side effect of this ruling is starting to cause consternation among homosexuals. Increasing reports are coming in concerning a very surprising turn of events which is currently being investigated.

Judge Walker’s ruling has apparently rendered homosexual couples wanting to get married capable of marriage. The biological mechanics of how this has happened is being looked into by researchers at Northridge Hospital Medical Center. Apparently within days of this ruling multiple homosexual partners started complaining of pains suspiciously similar to morning sickness. It was apparently considered a hoax by hospital staff when CT scans revealed female reproductive organs in one of the male partners from a homosexual couple. With multiple occurrences of this being reported by hospitals throughout California it is now shown not to be a hoax, but that some males in a gay relationship had indeed developed reproductive organs that had started growing on the day of Judge Walker’s ruling. It has also been confirmed that these men were indeed suffering from morning sickness and were actually pregnant...

Some gay couples are outraged by Judge Walkers decision that rendered them capable both the unitive and procreative aspects of marriage by giving them complementary reproductive equipment against their will. Many are upset about the idea that homosexual marriage will actually mean raising children other than by adopting the offspring of heterosexuals. Joe Smether of South Bay said 'I am glad that gay activists have often united with pro-choice activists in the past so that we can get abortions to keep our marriages sterile.' Others are seeking contraceptives to render sterile once again what once was a sterile act between a homosexual couple.

Legal scholars are looking at the physical repercussions of this. While in the past and present many rulings have gone against common sense and natural biology, this is the first ruling that caused a physical change to follow the law. Observer are carefully following other rulings to see if there are any other similar effects and whether judges have evolved beyond law interpretation/activism to the more god-like powers many thought they already had."

Thomas Sowell on Judge Walker

The great Dr. Thomas Sowell is interviewed by Peter Robinson today on "Uncommon Knowledge." He takes on Judge Walker's outrageous decision. Excerpt:

"The most important decision is always who makes the decision. The question of the role of gender is not for this judge to decide – since we’re presumably still, for the moment at least, a self-governing nation – it is for the voting public to decide. So the fact that Judge Walker feels the way he feels—wonderful! Let him vote that way in the privacy of the voting booth. But don’t let him say that this is now the law of the land."

I do believe the Congress has a duty to at least consider the impeachment of Judge Walker. The American Bar Association's "Impeachment Resources" webpage says:

"In the words of professor Jeff Atkinson of DePaul Law School, impeachment is designed 'to protect our country and our Constitution from leadership that has become a danger to the country. Phrases used by the framers of the Constitution include 'corruption,' 'abuse of power,' 'subversion of the Constitution,' and 'neglect of duty.'' In keeping with this purpose, the process and remedy are also 'political.' Our elected representatives in Congress sit in judgment, and, if convicted, the offender is removed from office and not permitted to hold office again."

More on Vacating Judge Walker's Ruling

The great Ed Whelan had documented how liberal jurists and reporters have refused to meet the argument for the vacating of Judge Walker's Proposition 8 ruling (see here, here, here, and here), based on the long-term same-sex relationship he is in, and of course was in, at the time of his ruling. The opponents of Prop 8 claim to see this as a motion to vacate based on the fact Walker is same-sex attracted.

Whether Walker's ruling is vacated or not, the refusal is itself telling, and of a piece with the totalitarian structure of homosexual activism. William Duncan of the National Orgainzation for Marriage, also writing in National Review:

"If you want a sense of the degree to which politicians in Sacramento are acting on the principle 'by any means necessary' in their desire to be rid of Proposition 8, the state’s marriage amendment, and their absolute contempt for the people of the state who approved the amendment, you need look no further than the news from yesterday. It reports that California’s new attorney general filed a brief with the California Supreme Court arguing that only public officials can represent the state in defending marriage laws. Conveniently, the attorney general and governor are not willing to defend the marriage law, so if the AG’s proposal is accepted, there would be no defense of Proposition 8.

The real kick in the story is that the brief filed yesterday is an amicus brief — in other words, the AG was not required to weigh in at all, she just chose to express her opinion that the people who put the proposition on the ballot (and convinced a majority of Californians to adopt it) should not get to have a say in its defense. The legislative leadership also jumped in, defeating a bill that would have made clear that initiative sponsors can defend their laws in court, in a committee vote yesterday. So the ruling political class in California is arrayed against a fair hearing for Proposition 8. Let’s hope the California Supreme Court refuses to go along.

With last week’s news about the effort to keep DOMA from getting a lawyer, one could reasonably ask why some influential people believe marriage doesn’t deserve a defense. Maybe they are less sure of their own position than they seem."

Sure. They're "unsure of their position" because it is in opposition to reality. As Eric Voelgelin pointed out years ago, the mark of totalitarian ideology is the unwillingness to discuss, because discussion allows reality to intrude, and the intrusion of reality destroys the dream world.

Devastating Critique of Prop. 8 Judge's Conduct

It's by Ed Whelan today, in National Review's the Corner.

Read the whole thing. Whelan examines five "controversial--and in many cases, unprecedented decisions" by Judge Walker, and concludes:

"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."

That's why we never even bothered following it. We wrote back on January 25:

"We haven’t commented on the issue much, or even followed it, because it seems to be mostly a propagandistic exercise in narcissism. The "trial" has the same relationship to a real trial as same-sex "marriage" has to real marriage."

Good News From Wisconsin

UPDATE 7:55 PST: Wow. With 70% of the vote counted, Governor Walker leads by 57 to 42%. I believe he only won the state by six points first time around. The recall was a referendum on Walker and his policies, and it looks like the Wisconsin voters are giving him a mandate.
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With 33% of the votes counted Governor Walker, and the rule of law, are winning a big victory in Wisconsin--right now it is 59% to 41%, and the networks are calling the election for him.

We have applauded Governor Walker's good-government efforts for a long time. You can see all of our posts on the events over the past two years in Wisconsin here.

Posted by Gibbons J. Cooney

Same-sex "Marriage" Initiative Won't Qualify for 2010 Ballot

From Reuters:

"Los Angeles-based Love Honor Cherish carried out a volunteer-driven signature-gathering effort after large groups decided there was not enough time to ensure victory this year, even with some polls showing more than 50 percent support for same-sex marriage.

A 150-day period to gather signatures to place the question on the ballot ended on Monday.

Courts and state legislatures have legalized same-sex marriage in five U.S. states and the District of Columbia, but popular votes have always rejected such unions, which are illegal in the vast majority of U.S. states."

The poll showing 50%+ support is misleading--due to the foolish tactic of labelling anyone who opposes same-sex "marriage" a bigot, support for natural marriage always turns out to be considerably larger on election day than people were willing to tell the pollsters. That's what happened in Maine.

Same-sex "marriage" activists are now pinning their hopes on Judge Vaughn Walker's ruling. As we reported back in February, Hastings Law School Professor Calvin Massey said the arguments made by the activists were "simply ludicrous" but also that he expects Judge Vaughn Walker to rule in favor of the plaintiffs anyway (so do we), but also that it "does not matter a lot what Judge Walker does" because the case will be decided by appeal.

If JudgeWalker rules soon, and he rules in favor of the same-sex "marriage" activists, the Senate hearings on the replacement for retiring Justice Stevens will be pure dynamite.

Posted by Gibbons J. Cooney

Ed Whelan Defends Marriage at Northwestern Law School

The great Ed Whelan, who has done so much to expose Judge Walker's injudicious shenanigians, will be taking part in a forum discussing same-sex "marriage" at Northwestern Law School in Chicago on September 7. There is not yet an online link for the event.

Speaking of shenanigans, last week Maggie Gallagher observed:

"Gay marriage advocates are now hoping for a technical knockout -- for the 9th Circuit to rule that the voters of California have no standing to challenge Walker's ruling. This may be a sign they understand how extreme and weak Walker's ruling actually is, how unable it is to withstand substantive review by higher courts. Ted Olson goes on TV claiming he has proved there's no possible case for opposing gay marriage. Now he's in court trying to block any higher court from reviewing his handiwork.

Does that sound like the behavior of people with an airtight logical case to you?"

Ed Whelan's Ongoing Smackdown of Judge Walker

Ed Whelan has compiled a helpful inventory of his posts on Judge Walker's follies.

"For anyone who’s read in the mainstream media about how impressive Judge Walker’s opinion supposedly is, or how weak the Prop 8 proponents’ case supposedly was, or any of various other common myths, I present this selective inventory of some of my recent posts for your review."

You can access it here.

Will An Adult Court Finally Hear Prop 8 Case?

Sure looks like it, and about time. Proposition 8 will be upheld.

 The Proposition 8 legal team filed papers today appealing to the Supreme Court to respect the will of the California voters and the definition of marriage. We have said all along that the case would go to the Supreme Court, removed from the reach of the clownish Judge Vaughn Walker, and the most overturned Judge in the most overturned court in the land, Judge Stephen Reinhardt of  the Ninth Circuit.

Some examples, in reverse chronological order:

In a foregone conclusion, the Ninth Circuit today refused the petition for an en banc rehearing of Judge Reinhardt's anti-marriage ruling.

The Ninth Circuit is expected to rule tomorrow on the Proposition 8 case. As we have said many times before, given the court's makeup, we expect the Ninth Circuit to uphold Judge Walker's ruling, and we equally expect their decision to be appealed to the U.S. Supreme Court.

Reinhardt, who should have recused himself (see here, here, and here), and the others will almost certainly uphold Walker's ruling. Then, on to the Supreme Court!

Whatever happens, the case will go to the Supreme Court.

"We haven’t commented on the issue much, or even followed it, because it seems to be mostly a propagandistic exercise in narcissism. The "trial" has the same relationship to a real trial as same-sex "marriage" has to real marriage."The case will eventually reach the Supreme Court.