I am afraid the answer is yes.
Needless to say the fact that the Judge that decided the Prop 8 case in California is gay is no secret. He has never gone out of his way to keep that hidden. When Reagan tried to get him on the Bench(he was opposed by the Dems) everyone knew it. When BUSH I tried twice (being successful the third time) to get him on the Bench everyone knew.
I am not the type when a Judge that is "Liberal" writes a opinion to go ranting about out of control partisan judges. I hate when libs do that to "conservative" Judges .The reality is a lot more complex than that. Judges in reality are a lot more INDEPENDENT than that.
The same goes in this case to sexuality attractions a Judge might have.
Further I have made it a point while this litigation was going on to remind people that the Judge being gay should not disqualify him from hearing the case.
However that task became more tiresome as the case went on. First there was his wild antics to get cameras in the Court room on this Case. The Supreme Court seemed not very please that in this one CASE and this case alone the Judge was asking for this. Other matters that happened pre-trial raised major red flags.
Then came the opinion.
There is in certain more sober legal quarters that support same sex marriage some major concern over his opinion. I was quite frankly shocked how one sided it was and in fact seemed to go out of it's way to be a policy brief.
One wonders what other Judges in the 9th Circuit are thinking right now as they read it.
It is not that he ruled that there was a Federal right to same sex marriage but how he got there. I was blown away and again shocked that it appeared so transparent. It seemed less a judicial opinion(though certain parts were good) but political ad. He threw down the gauntlet and yes appeared to make war on those that might disagree with his view of the world. See via First Things Here Come The Thought Police. Also see Perry v. Schwarzenegger">More on Whether the Facts Matter in Perry v. Schwarzenegger where I think these concerns are in the background.
A Notre Dame Law Prof has a good take here. See Was Judge In California's Gay Marriage Case Truly Impartial?
I suspect even supporters of same sex marriage are concerned that the upper Courts as an act of integrity might rule in a manner they might not have if the opinion looked well more judicial. See A Maximalist Decision, Raising the Stakes
Which brings us to gay lawyers or Judges. In Louisiana I know several gay lawyers and yes a Judge or two. Their sexuality has never been a real secret either.
I think the Federal Judge in this case who was under the microscope has done no service to these good men and women. That is an injustice has been done to these very fine legal minds . I have observed they represented their clients as zealous advocates or judged in a impartial manner. I fear they will be the unreported victims of an opinion that did not have to be written the way it was to come the conclusion it appears he wanted.
Again I don't what he was thinking. Did his Clerks try to perhaps to get him tone it down a tad so it did not look well so "special interest" like. I would love to know.
Thursday, August 5, 2010
Has Judge Vaughan Walker Done Harm To Gay / Bi Lawyers and Judges?
Subscribe to:
Post Comments (Atom)
7 comments:
I think one of the overlooked aspects in this decision is that it reflects an absolute and complete domination of Boies and Olson over the defendants. Having asked for evidence, the plaintiffs mounted a comprehensive case and the defendants mounted a weak case with only two witnesses. I didn't follow the trial but it is very clear that Ted Olson and David Boies, two of the absolutely most accomplished trial lawyers in the country thoroughly destroyed defendants' witnesses such that there was virtually no case left on the defense side. As litigators know, the discovery phase of a trial is critically important and Boies and Olson are masters of the process. (In particular, Boies' mastery of discovery knife-fights was primarily responsible for his defeat of Sullivan & Cromwell in the Microsoft anti-trust case.) After cross-examination, defense evidence that already seemed to be weak was decimated and I think that is what was primarily responsible for how one-sided the ruling is. Judge Walker is not to be blamed for a one-sided record created by excellent lawyering on the plaintiffs' side and poor lawyering on the defendants' side.
I am not so sure how exactly Bad the other lawyers were. I have no doubt that most Lawyers would be outmatched by Oles and Bois to a certain degree.
Lets looks at this from this Opinion
"Marriage is nothing more than an artifact of a foregone notion that men and women fulfill different roles in civic life"
An "artificat"?
If you look at his opinion he comes a incredible amazing number of "facts" that seem to touches on some biggest structures of the day and after a few witness on these subjects he is prepare to find finding of fact like this and other whoppers?
He did not have to do that. Lord he basically made war on Christians in that article he did not have to do that.
I am not so sure at all the other sides "experts" were nearly as bad as he is letting on. Especially when it appears he guided the case to get the "facts" he wanted. I suspect a lot lot more will come out once someone pays to get the whole Trial transcript. However the opinion is disappointing and still have no clue why he wrote it this way
He never says that "marriage is an artifact of a foregone notion...." He said that the gender restriction to marriage that Proposition 8 enshrines in the California Constitution has been shown by the evidence to be "nothing more than an artifact of a foregone notion that men and women fulfill different roles in civic life." That conclusion is derived from evidence that: (a) the tradition of gender restrictions in legislation arose when spouses were legally required to adhere to specific gender roles and that over the years, the State of California has eliminated all legally-mandated gender roles except the requirement that marriage consist of one man and one woman. All this is on page 124 of the decision.
Also, I think you're right that most (almost all perhaps) litigators would be outmatched by the either one of Olson or Boies, so the two of them running a case would be very intimidating. But even without having seen the discovery transcripts or trial testimony I would bet $1,000 that proponents' counsel was in fact, quite bad. You just don't get lopsided decisions like this in federal court without having one side just fail to do its job. In this case, their failure was made worse by having adversaries who are experts at seizing every weakness and exploiting it to devastating results. That is what David Boies does for a living in the biggest and most complex litigations in the country.
And good litigators know that all discovery is about credibility. I have no doubt that Judge Walker was not biased before discovery began but was biased against the proponents by the time the trial started and very biased against them by the time the trial ended as plaintiff counsel destroyed all of their credibility. This is evident in the decision.
They selected poor witnesses with easily-assailable credentials and then, after allowing them to be demolished in discovery, allowed them to get demolished on cross-examination at trial.
Who was counsel of record for the pro-prop 8 side?
I really don't know, but I can guarantee you that they never saw the likes of David Boies before. Boies was IBM's go-to litigation lawyer when he was at Cravath and then represented the US Government in the Microsoft anti-trust litigation on which he made Sullivan & Cromwell, one of the most prestigious firms in New York, look incompetent. So imagine what he must have done to these poor lawyers. They probably had no idea what hit them.
In typical legislation, committees have hearings to gather "evidence" which has a bearing on policy and ultimately, forms the basis of the legislation. When judges assess the constitutionality of laws, they accord the conclusions or findings of legislatures a certain amount of deference. In initiative and referendum, no such record attends the law, so the court had to create one. What is brilliant about this case is that the lawyers for each side were the ones architecting the record so that the "record" then becomes "findings of fact" by the judge which can only be overturned if they are clearly erroneous. Perhaps this is why the opinion sounds so, well, opinionated. The judge was asked to rule on a set of sociological facts based on the evidence that was presented. Finding sociologic facts as opposed to forensic facts is not a typical judicial function, but a necessary one if he has to rule on a record-less initiative.
Post a Comment