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Circus Trial Begins Over Proposition 8

By KAREN LEE TORRE

It takes a true judge to handle respectably a major hot-button case of great significance to the citizenry. One who is not can cause a lot of damage beyond losing the confidence and respect of lawyers and their clients, things a judge should and must have from both sides to a case.

An incorrect and misguided ruling is an injustice to a party that is reparable on appeal. A blow to the bar’s and the public’s confidence in the integrity and the very legitimacy of the court itself is another matter entirely, and slow to repair. On these counts, the widely watched “Prop 8” trial in a San Francisco federal court got off to a most inauspicious start, with presiding Judge Vaughn Walker self-mutilating before the first bell.

For the unaware, Perry v. Schwarzenegger, is a desperate attempt by gay marriage proponents to now get a federal court to gift over to them what they failed to gain in the legislatures and at the ballot box. They want Walker to override the voters of California, ignore the California Supreme Court’s responsible and correct refusal to do so, and invent a federal constitutional right to same-sex marriage.

The sought-after declaration would not only invalidate Prop 8 but the marriage laws in nearly every state, override the will of millions of voters throughout the nation, usurp every state legislature that considered but rejected same-sex marriage and wreak nationwide chaos. But that potential judicial tsunami is quite beside the point of Walker’s de-legitimizing his ruling before it is even written.

Walker’s pre-trial shenanigans are rather shocking, enough to cause not only the Ninth Circuit Court of Appeals to convene but the United States Supreme Court to intervene, on a weekend no less. First, even a Circuit trio of Clinton-appointees was driven to reverse Walker’s order for an unprecedented fishing expedition into the mental state of Prop 8’s sponsors and California voters, ostensibly to permit plaintiffs to prove that voters were bigot-baited into voting “yes” on Prop 8. Walker’s bench assault on First Amendment freedoms was promptly interrupted.

But that pales in comparison to Walker’s outrageous pre-trial machinations to orchestrate a televised broadcast of the trial. Space does not permit a full account, but for those interested in how an activist judge operates, the National Review’s Ed Whelan, on top of Walker’s every move, has been recounting for days every dirty detail. Read him and weep.

Against a longstanding policy of the U.S. Judicial Conference prohibiting the broadcast of federal court proceedings, and every procedural rule on the books, Walker engaged in a series of shockingly improper efforts to skirt those rules. Gay marriage activists consider Walker’s court the stage for a modern-day “Scopes” trial. They want the drama played out on YouTube, and vowed to hold those “right-wingers” who testify “accountable for everything they say.” This is against a well-documented series of threats, harassment and intimidation of Prop 8 supporters by angry, militant gays who will not respect the right of others to disagree with them.

Walker issued a series of notices and orders short-circuiting established means for changing a federal court’s local rules in order to televise the trial, over the objection of Prop 8 lawyers and despite the stated fear of trial witnesses who, with good reason, are concerned about their safety. When you read how and when he did all this (including a lawless order on New Year’s Eve that he later removed from the Court’s web site) you cringe.

Upon an emergency writ of mandamus, the U.S. Supreme Court had to step in over the weekend. It later extended a temporary order preventing Walker from turning his courtroom into a political circus. The majority rightly chastised Walker and noted the importance of judges obeying the very procedural rules they insist everyone else obey.

They should have gone further and yanked him off that case. Already, Walker’s impartiality is suspect. Among many now publicly questioning it, Washington Post legal affairs editorialist Eva Rodriquez put it best when she observed that Walker’s pre-trial conduct has already sullied the proceedings. If Walker could not be “unflinchingly fair about something that simple,” she wrote, “how can I trust him to be fair to both sides when deeply held beliefs and constitutional rights are at stake?” •

Karen Lee Torre, a New Haven trial lawyer, litigates civil rights issues in the federal courts. Her e-mail address is thimbleislands@sbcglobal.net