In an ongoing series of posts on National Review Online’s Bench Memos blog on the anti-Proposition 8 trial in California, EPPC President Ed Whelan is exposing the shenanigans orchestrated by the presiding judge. See also Mr. Whelan’s introductory essay, “Staging a Show Trial on Same-Sex Marriage.”
- Judge Walker’s “Immediate Need” for a YouTube Circus-Part 1
- Judge Walker’s “Immediate Need” for a YouTube Circus-Part 2
- Judge Walker’s “Immediate Need” for a YouTube Circus-Part 3
- Judge Walker’s Gambit to Bamboozle the Supreme Court-Part 1
- Judge Walker’s Gambit to Bamboozle the Supreme Court-Part 2
- Judge Walker’s Gambit to Bamboozle the Supreme Court-Part 3
- Ramifications of Supreme Court Opinion Blocking Broadcasting-Part 1
- Ramifications of Supreme Court Opinion Blocking Broadcasting-Part 2
- Ramifications of Supreme Court Opinion Blocking Broadcasting-Part 3
- Judge Walker’s Wild Witchhunt-Part 1
- Judge Walker’s Wild Witchhunt-Part 2
- Judge Walker’s Wild Witchhunt-Part 3
- Judge Walker’s Wild Witchhunt-Part 4
- Judge Walker’s Wild Witchhunt-Part 5
- Judge Walker’s Skewed Judgment
In a series of three or so posts today, I’m going to explain why Judge Walker’s order requiring audio-video recording and transmission (I’ll sometimes use the admittedly inexact shorthand “televising”) of the trial proceedings in the Proposition 8 case should be overturned forthwith. In this post, I’ll review yesterday’s sham hearing and discuss just what Walker has ordered. In the next post, I’ll show that his order is unlawful. And then I’ll discuss why his order threatens unfair and irreparable (and wildly asymmetric) prejudice to Proposition 8 supporters.
A few key points about yesterday’s hearing:
1. In a microcosm of what the trial will be, yesterday’s hearing was a sham on the issue of televising. Even before the hearing started, Walker had already had the court’s clerk issue a statement declaring (evidently falsely, as it turns out) that the Ninth Circuit had already granted Walker’s request “to pilot [the Ninth Circuit's] public access program by providing audio & video of the trial” of the case. Walker had the hearing begin with the court’s IT manager explaining how the televising would work. And Walker revealed during the course of the hearing that the fix was in on this issue long ago — that the desire to televise the Proposition 8 case drove the recommendation by a Ninth Circuit committee to authorize the pilot program: “this case was very much in mind at that time because it had come to prominence then and was thought to be an ideal candidate for consideration.” How would Walker know this? He was (surprise!) one of the three members appointed by Ninth Circuit chief judge Alex Kozinski to serve on the committee.
Despite the fact that this issue had been predetermined, Walker went through the motions of asking some seemingly probing questions of plaintiffs’ counsel.
2. Walker’s televising order has two distinct aspects: First, the entire proceedings will be transmitted live to various courthouses throughout the Ninth Circuit and perhaps to federal (and state?) courthouses throughout the country. (Walker stated that the Northern District of Illinios has already submitted a request for streaming video, and he indicated that he was receptive to requests from “other courts” as well.) Second, the entire proceedings will be transmitted “on a delayed basis to YouTube for purposes of posting on the Internet so the proceedings can be made generally available.”
Posting on YouTube would, of course, in turn make it easy for anyone to splice and dice the video, post highlights, overlay the video with text or special effects, and make alterations. Posting on YouTube, in other words, creates the possibility that any particular excerpt of any witness’s testimony or any counsel’s statement could “go viral.”
Together, these aspects of Walker’s order ensure that the potential for abuse and harassment of witnesses and other trial participants is thousands, if not millions, of times greater than an ordinary unrecorded trial would entail.
3. An apparent purpose — and surely the obvious effect — of the show trial that Walker is staging is to make Proposition 8′s sponsors pay as high a price as possible for their exercise of their First Amendment rights. The meaning and operation of Proposition 8 are clear. Millions of Californians voted for Proposition 8, and the votes of Proposition 8′s sponsors were immaterial to the outcome. What possible relevance is there to the particular motivations, the particular understandings of and attitudes of Proposition 8′s sponsors? Either there is a federal constitutional right to same-sex marriage, or there isn’t. How can that question possibly turn on factual inquiry into the motivations of Proposition 8′s sponsors? (I intend to explore this issue more fully.)
At trial, plaintiffs’ counsel aim (as they state in their trial memorandum) to show that Proposition 8 is “an irrational, indefensible, and unconstitutional measure” and that it was “motivated by moral disapproval and irrational views concerning gay and lesbian individuals.” Plaintiffs’ counsel will be trying to show that the sponsors of Proposition 8 who testify as witnesses are contempti
ble bigots — and the predictable consequence of their effort will be to incite harassment and abuse of these witnesses and their counsel.
4. Dismissing the vast multiplier effect that the televising order will have, Walker and plaintiffs’ counsel, Theodore Boutrous, indicated their belief that the sponsors of Proposition 8deserve whatever additional harassment and abuse come their way. As Boutrous put it, the sponsors “thrust themselves into this issue.” He called it “ironic” that people who have been “stripping away” the right to same-sex marriage could complain about being subjected to harassment and intimidation. (His December 29 letter similarly states that “Proponents willingly thrust themselves into the public eye.”) Walker likewise stated that the Proposition 8 sponsors had, by virtue of their political campaign, “assumed a public face” that evidently subjects them to whatever ensues.
Judge Walker’s televising order (see Part 1) in the Proposition 8 case is illegal for the simple reason that it violates the version of his court’s Local Rule 77-3 that is lawfully in effect. Consistent with the longstanding policy of the Judicial Conference of the United States, that rule flatly prohibits “the taking of photographs, public broadcasting or televising, or recording for these purposes in the courtroom or its environs, in connection with any judicial proceeding.” Walker has made several stabs at amending the rule, but each of his efforts has been unsuccessful. In particular, his current claim to have lawfully amended the rule under the “immediate need” provision of 28 U.S.C. § 2071(e) is ludicrous: there was manifestly no need to implement immediately the Ninth Circuit’s recently announced pilot program for experimental use of cameras in district courts.
Let’s review Walker’s successive (but not successful) efforts to revise Local Rule 77-3-in each case, purporting to create an exception to the televising ban when authorized by a judge “for participation in a pilot or other project authorized by the Judicial Council of the Ninth Circuit”:
1. According to a December 23 court notice that has disappeared into a black hole, Walker purported to amend Local Rule 77-3 on December 22. He never provided the prior public notice and opportunity for comment that is ordinarily required under 28 U.S.C. §2071(b) for amendments to rules. Nor did he seek to avail himself of the exception under section 2071(e) for instances in which “the prescribing court determines that there is an immediate need for a rule.”
2. Having learned from letters from counsel about his noncompliance with section 2071, Walker clearly conceded that his December 22 purported amendment was unlawful when he issued his New Year’s Eve surprise, entitled “Notice Concerning Proposed Revision of Civil Local Rule 77-3.” That notice sought to achieve nominal compliance with section 2071(b) by setting a ridiculously short comment period — ending on January 8, 2010, a mere five business days from publication of the notice and, not incidentally, the Friday before the January 11 start of trial. His notice could hardly have been better calculated to evade section 2071′s purpose of promoting public comment.
3. Perhaps realizing that his New Year’s Eve surprise wouldn’t enable him to carry through on his announced plan to televise the January 6 hearing (nor to use that hearing to issue an order requiring televising of the Proposition 8 trial), Walker then caused a new notice to be issued, either on January 4 or January 5. (The notice, which has the same URL that the New Year’s Eve notice had, states that it was posted on January 4, but I haven’t seen any clear evidence that it was posted earlier than January 5.) Entitled “Notice Concerning Revision of Civil Local Rule 77-3,” that notice claims that the court has amended the local rule “effective December 22, 2009.” Beyond this trick of time travel, the notice also claims that the amendment “was adopted pursuant to the ‘immediate need’ provision” of section 2071(e). It provides no statement of what the supposed “immediate need” is.
The notion that there was an “immediate need” to revise Local Rule 77-3 to permit implementation of the Ninth Circuit’s pilot program is absurd. The Ninth Circuit announced its pilot program on December 17, 2009. Nothing in its announcement remotely signals any urgent need that it be implemented immediately, nor is such a suggestion even plausible. Indeed, the announcement itself states that it was implementing a resolution passed in 2007. If the Ninth Circuit itself took two years to implement that resolution, it clearly was in no rush. And, so far as I’m aware, none of the other fourteen or so district courts in the Ninth Circuit has seen any reason to rush to revise its equivalent of Local Rule 77-3. Further, the Ninth Circuit has yet to issue any resolution, order, or other publicly available information setting forth the policies and procedures that will govern the pilot program.
The only “immediate need” that Walker perceived was the need to find some way to orchestrate the televised show trial that he has been intent on conducting. He has violated section 2071, not satisfied it, in the process, and the pre-existing version of Local Rule 77-3, barring all televised proceedings, necessarily remains the version that is lawfully in effect. His order to televise the Proposition 8 trial is therefore illegal.
In addition to its illegality (see Part 2), Judge Walker’s televising order threatens unfair and irreparable — and wildly asymmetric — prejudice to the parties and witnesses supporting Proposition 8. For that reason, his order should be vacated before trial begins next Monday.*
From the paramount perspective of ensuring fair treatment of litigants, it is difficult to imagine a worse civil case to televise than the Proposition 8 case. As counsel for the Proposition 8 sponsors spelled out in their letters opposing televised proceedings, the fair-trial concerns that animate the longstanding opposition of the Judicial Conference of the United States to televised proceedings in federal district court apply with special force in this case. Given all the harassment of Proposition 8 supporters that has already occurred, “it is not surprising,” as counsel’s December 28 letter puts it, that “potential witnesses have already expressed to [counsel] their great distress at the prospect of having their testimony televised” and that “some potential witnesses have indicated that they will not be willing to testify at all if the trial is broadcast or webcast beyond the courthouse.”
As I discuss in point 2 of my Part 1 post, Walker’s YouTube order ensures that the potential for abuse and harassment of witnesses and other trial participants is thousands, if not millions, of times greater than an ordinary unrec
orded trial would entail. Further, that potential is far more likely to be anticipated by those individuals supporting Proposition 8 than by plaintiffs and their witnesses. This is so not only because of the recent ugly episodes that followed adoption of Proposition 8. It is also because plaintiffs’ declared trial strategy (see point 3 of Part 1) is to show that the sponsors of Proposition 8 who testify as witnesses are contemptible bigots-and that strategy will have the predictable consequence of inciting harassment and abuse of these witnesses and their counsel. By contrast, the attorneys defending Proposition 8 have no litigation interest in showing that particular opponents of Proposition 8 are, say, really interested in destroying marriage altogether, or are anti-religious bigots, or are “irrational.” Their task, rather, is merely to show that Proposition 8 is rationally related to, or otherwise sufficiently advances, legitimate governmental interests.
I am not contending here that supporters of Proposition 8 are more genteel than their opponents. I am merely making the elementary point that the posture and related trial strategies of the two sides virtually guarantee that televising the proceedings will have a dramatically asymmetric effect on the abuse and harassment that witnesses and other trial participants anticipate and experience.
The possibility that Judge Walker might authorize that a witness’s face be blacked out on the streamed video does little to reduce the prospect of intimidation and harassment. For starters, some witnesses may simply refuse to testify if the trial is ordered televised. In addition, in a YouTube world, blacking out may operate to shine a spotlight on any witness who prefers not to testify on camera — and may trigger increased abuse.
There is no public interest in televising the trial that could remotely offset these fair-trial concerns. At yesterday’s hearing, Judge Walker contended that the case could provide an important “civics lesson.” Set aside the fact that Walker plainly isn’t interested in trying to provide a neutral civics lesson. The simple fact that Walker somehow has forgotten is that it’s not the role of the courts to set out to provide civics lessons. The role of the courts is to decide cases fairly and according to the law.
Moreover, our system of representative democracy has its (admittedly imperfect) way of providing civics lessons. They’re called election campaigns. They took place in California in 2000 and again in 2008 on the topic of marriage. And the losing side, having failed twice to convince a majority of Californians not to protect traditional marriage, is now intent on having an electorate of one judge override the democratic processes.
* Even if Walker’s order did not violate Local Rule 77-3, it would nonetheless be a gross abuse of discretion for the reasons discussed in this post, and should be vacated for those same reasons.
Last Thursday, as part of his order for televised coverage of his anti-Proposition 8 show trial, Judge Vaughn Walker ordered “the transmission of these [trial] proceedings on a delayed basis to YouTube, for purposes of posting on the Internet so the proceedings can be made generally available.” (Official Transcript for Jan. 6, 2010, at 17:6-8.) Walker had his court’s IT expert explain to the parties in open session that “we’ve started up a YouTube channel” — “The YouTube address right now is youtube.com/usdccand … it’s like U.S. District Court California Northern District” — and that “Our intent is to upload the entire thing.” (6:9, 8:21, 9:3-5).
In the immediate aftermath of the Supreme Court’s interim order yesterday barring Internet broadcasting of the trial, Walker, who evidently remains as fervent as ever in his desire to televise the trial, tried to put lipstick on his pig by purporting “to clarify” a point:
What the Court [i.e., Walker] has contemplated and what the Ninth Circuit pilot project contemplates is a posting on the Northern District of California website. It is not a Google YouTube posting that may be commonly understood. Rather, that service is under consideration as a conduit for posting an audio and visual feed pursuant to a contract that the government has with that service.
(Official Transcript for Jan. 11, 2010, at 10:1-9.)
Set aside Walker’s disingenuous effort to recast his latest change of course as a clarification. The cosmetic change that Walker is now proposing is substantively meaningless. It has zero bearing on the concerns that warranted the Supreme Court’s order.
First, posting the video of the trial on the court’s website violates the version of the court’s Local Rule 77-3 that is lawfully in effect in exactly the same way that YouTube posting would. (See “Judge Walker’s ‘Immediate Need’ for a YouTube Circus-Part 2.”)
Second, posting the video of the trial on the court’s website presents exactly the same potential for abuse and harassment of witnesses and other trial participants that YouTube posting would. As a tech-savvy colleague informs me, posting on the court’s website, as compared to posting on YouTube, makes it at least as easy (and, depending on the format of posting on the court’s website, perhaps even easier) for anyone to splice and dice the video, post highlights, overlay the video with text or special effects, and make alterations. There remains, in other words, the same possibility that any particular excerpt of any witness’s testimony or any counsel’s statement, whether or not presented fairly, could “go viral.” And the potential for abuse and harassment of witnesses and other trial participants remains thousands, if not millions, of times greater than an ordinary unrecorded trial would entail. (Walker has shown himself either desirous of, or wildly reckless about, this potential for enhanced abuse and harassment, as I discuss in points 3 and 4 of “Judge Walker’s ‘Immediate Need’ for a YouTube Circus — Part 1” and in my essay “Staging a Show Trial on Same-Sex Marriage.”)
If Walker thinks that his meaningless cosmetic revision will trick the Supreme Court justices, he’s taking them for fools.
A second matter that Judge Walker purported “to clarify” in the immediate aftermath of the Supreme Court’s interim order yesterday barring Internet broadcasting of the trial was the series of badly confused steps by which he unsuccessfully tried to revise Local Rule 77-3 for the specific purpose of enabling televised coverage of his anti-Proposition 8 show trial. Among other things, Walker stated yesterday that a revision to Local Rule 77-3 was adopted at a “special cour
t meeting not held for the purpose of considering an amendment to Rule 77-3, but for another purpose.” According to Walker, the revision was adopted “without a comment period, because it was a conforming amendment to Ninth Circuit policy.” Walker also acknowledged, again (see point 1 here), that the rush to amend Rule 77-3 was driven by his desire to televise the anti-Prop 8 trial. (Official Transcript for Jan. 11, 2010, at 10-11.)
Walker’s effort to defend his purported revision of Rule 77-3 fails. First, there is no exception to the notice-and-comment requirements of 28 U.S.C. § 2071 for revisions of local rules that are intended to conform with circuit policy. (It’s also far from clear that the changes to circuit policy were lawfully implemented.) Second, as I discussed in point 3 here, the notion that there was an “immediate need” (under section 2071(e)) to revise Local Rule 77-3 to jumpstart implementation of the Ninth Circuit’s pilot program is absurd. The only “immediate need” that Walker perceived was the need to find some way to orchestrate the televised show trial that he has been intent on conducting.
Walker’s eagerness to play circus master is also reflected in his announcement yesterday, predictably eliciting guffaws in the courtroom audience, that he had received 138,542 responses in favor of his purported revision to Local Rule 77-3 and 32 responses opposed. Walker didn’t see fit to note that 138,248 of the supportive responses were signatures solicited by an activist group called the Courage Campaign that launched a petition drive urging its supporters to sign their names to a letter to Walker that “insist[s] that the trial of Proposition 8 be televised.” (As I’ve noted, it was that same Courage Campaign that produced a notorious anti-Prop 8 ad that appealed to anti-religious bigotry.)
The joint gamesmanship of Judge Walker and Ninth Circuit chief judge Alex Kozinski in support of their goal of televising the anti-Proposition 8 show trial has been so transparent that even a news article in San Francisco’s legal newspaper refers matter-of-factly to their having “willfully orchestrated a break from official federal judiciary policy.” It appears that it was Kozinski (who can be an excellent judge on those occasions when he doesn’t succumb to his own willfulness or to his own admiration of his cleverness) who pushed Walker to make the meaningless cosmetic rebranding of his YouTube order.
Some time on Friday — evidently after counsel for the Proposition 8 sponsors filed their emergency petition to the Ninth Circuit — Kozinski issued an order that granted Walker’s request to transmit real-time live streaming to designated federal courthouses and that stated that Walker’s supposed “request for posting the files of the videos on the district court’s website is still pending.” Never mind that there was no record that Walker had ever made such a request. Perhaps Kozinski and Walker privately worked out a revised request. Or perhaps Kozinski himself decided that the superficial cosmetics of the rebranded request — avoiding any reference to YouTube — would be better. In any event, Kozinski’s statement that the request was “still pending” — in an order that counsel for the Proposition 8 sponsors obviously weren’t aware of (their emergency petition states that there was no record that Kozinski had yet acted) — may well have been dispositive in the decision by the Ninth Circuit panel to deny the emergency petition. (Counsel for the plaintiffs made the ongoing pendency of the request their lead ground in opposing the subsequent request for a Supreme Court stay, but the Supreme Court, to its credit, saw through the gamesmanship.)
Some time on Sunday, Kozinski sent a six-page letter to Judge Anthony Scirica, chairman of the executive committee of the Judicial Conference of the United States, and to James C. Duff, secretary of that body. Kozinski’s letter responded to a January 8 letter from Scirica and Duff in which they had written “to bring to [his] attention … the policy of the Judicial Conference of the United States which does not allow courtroom proceedings in civil and criminal trials in district courts to be broadcast, televised, recorded or photographed for the purpose of public dissemination.” Scirica and Duff asked Kozinski “to consider the Judicial Conference policy” in deciding whether to authorize televising the anti-Proposition 8 trial.
Kozinski’s response to Scirica and Duff (which Walker entered into the record yesterday and which the plaintiffs and media supporters have since filed with the Supreme Court) is noteworthy in several respects.
First, Kozinski again characterizes Walker’s request as a “request to place a video recording … on the Northern District’s website” and asserts that the request is “not ripe for decision” because “necessary technical issues have not yet been resolved.” Only a naif would not perceive Kozinski as trying to game the Supreme Court’s then-pending review of the stay application.
Second, Kozinski contends that the Ninth Circuit’s pilot project “was developed after considerable deliberation and careful research.” Unlike Walker (see point 1 here), Kozinski doesn’t acknowledge that the entire program was driven by the desire to televise the anti-Prop 8 trial. Nor does he disclose that, unlike what you would expect from a product of “considerable deliberation and careful research,” there is no resolution, order, or other publicly available information setting forth the policies and procedures that will govern the new program. Indeed, if there really are “necessary technical issues have not yet been resolved,” that would be yet further evidence of Kozinski’s unseemly rush. Kozinski’s promise that “we will be proceeding with great caution” is belied by his course of conduct and cannot be taken seriously.
Third, Kozinski contends that “there is no Judicial Conference policy prohibiting trial courts from placing video recordings of non-jury civil proceedings on their websites.” Insofar as Kozinski is contending that the Judicial Conference policy against public broadcast of civil proceedings in district court doesn’t apply to placing video recordings on websites, he’s making a fetish of technological developments and ignoring the fair-trial concerns that animate the Judicial Conference policy. (It’s also worth noting that the Supreme Court’s interim order yesterday blocks “broadcast” of the proceedings, which the Court clearly understand to include via Internet postings.) Insofar as Kozinski is contending that Judicial Conference policy doesn’t legally bind him, he’s correct, I think* — but that’s no warrant to be reckless of fair-trial concerns, including concerns about abuse and harassment of witnesses and other trial participants. Yet Kozinski says not a word about those concerns, notwithstanding the extraordinary harassment of Proposition 8 supporters that has previously occurred.
This, of course, isn’t the first time that Kozinski has engaged in mischief with computer servers, as J
udge Scirica, who wrote the opinion admonishing Kozinski for his “conduct exhibiting poor judgment,” is well aware. By making its interim order permanent, the Supreme Court would spare Kozinski from exhibiting further poor judgment in this case.
* It’s interesting to note that Judge Walker has himself characterized the Judicial Conference policy to be binding. In General Order No. 58 (page 8 here), which he issued in 2005, Walker stated: “Policy of the Judicial Conference of the United States prohibits, in both civil and criminal cases in all district courts, broadcasting, televising, recording, or photographing courtroom proceedings for the purpose of public dissemination.” In addition, his court’s 2009 General Information Guide for Journalists states (on page 4): “Broadcasting of proceedings is prohibited by policy of the Judicial Conference of the United States.”
The Supreme Court’s order barring broadcast of the anti-Proposition 8 trial derails Judge Walker’s plan to turn the case into a high-profile, culture-transforming, history-making, Scopes-style show trial of the sponsors of Proposition 8. Further, the majority’s stinging rebuke of Judge Walker’s procedural irregularities strongly signals that at least five justices have serious questions about his impartiality and judgment in this matter.
As I outlined in my initial essay, Walker was hellbent to broadcast the trial, presumably because of the massively increased coverage — on television and radio as well as on the Internet — that broadcasting would generate. The most plausible explanation for Walker’s peculiar refusal to decide this case (one way or the other) as a matter of law and instead to concoct all sorts of factual questions that supposedly need to be resolved at trial is that Walker wanted lots of material for his show trial.
In light of the Supreme Court’s broadcast bar, Walker should now be asking himself, “Why throw a show trial if hardly anyone is watching?”
It’s possible as well that Walker imagined that his factual findings at trial would receive deferential review on appeal and thus help insulate his legal ruling from being reversed. Even before yesterday’s ruling, it struck me as farfetched that any Supreme Court justice would think that the question whether there is a federal constitutional right to same-sex marriage might turn on how a trial judge resolves contestable issues of fact. The idea that findings by Walker might play such a role is all the more ludicrous now that his impartiality has been so discredited.
Recall that, in addition to the Supreme Court’s order, Walker has already been overruled by a Ninth Circuit panel (of three Clinton appointees, no less) on an important discovery question: The panel ruled that Walker, in his sweeping order authorizing the plaintiffs to obtain access to the private communications of Proposition 8′s sponsors on campaign strategy, grossly underprotected the First Amendment associational rights of the campaign sponsors.
Further, as even a Washington Post editorialist who is a self-described supporter of same-sex marriage has put it in condemning Walker’s procedural shenanigans on the broadcast issue, Walker has flagrantly violated his duty to “be impeccably fair, [to] adhere without agenda to the rule of law and [to] be as transparent as possible.” This raises in the editorialist’s mind the natural question, “If I can’t trust Judge Walker to be unflinchingly fair about something that simple, how can I trust him to be fair to both sides when deeply held beliefs and constitutional rights are at stake?” The short answer that should be clear to everyone by now: You can’t, and neither can anyone else.
As these articles in the New Yorker and California Lawyer discuss, the decision by Ted Olson and David Boies and their Hollywood backers to file a lawsuit challenging Proposition 8 as a violation of the federal Constitution was highly controversial among many advocates of same-sex marriage. Acceptance of, or at least acquiescence to, that decision appears to have come as a result of deference to the reputed strategic savvy of superlitigators Olson and Boies. But the Supreme Court’s order barring broadcast of the anti-Proposition 8 trial calls into question that supposed savvy.
As law professor Dale Carpenter, an advocate of same-sex marriage, puts it in a Volokh Conspiracy post, yesterday’s Supreme Court ruling is a “potentially ominous development for pro-SSM litigants”:
As an advocate, you’d rather not have the ultimate reviewing court call into question your judge’s objectivity on the third day of trial…. As an advocate, you’d rather not have the ultimate reviewing court see the opposition as David needing protection from your Goliath.
All in all, it’s a bad start for the judicial challenge to Prop 8.
I don’t mean to read too much into this early development, but it’s curious that the “dream team” of lawyers for plaintiffs paved the way for it happen. For example: Where was their strategic thinking when Walker surprised them early on by pressing for an expansive trial of factual issues and associated discovery? When Walker revealed his plans to broadcast the trial, did they just get piggy and somehow fail to anticipate the need for Walker to take the proper procedural steps? And why, oh why, did they respond to obviously legitimate concerns about harassment and intimidation of pro-Prop 8 witnesses by taking the position (see point 4 here) that those witnesses deserve whatever comes their way?
As Carpenter signals, the fact that Justice Kennedy joined, and probably wrote, the Court’s per curiam opinion may also raise real doubts about th
e soundness of what the New Yorker article calls Olson’s “self-assurance” in his reading of the Court. I’m certainly not going to predict that Olson won’t in the end achieve the Supreme Court victory that he’s been confidently promising. But he certainly didn’t tee up the broadcast issue well for his clients. And I’m also willing to bet that he wildly misread the prospect that the Court would rule as it did.
As the New Yorker article puts it, Olson sees the anti-Prop 8 case “as a way to make history.” The fears of other advocates for same-sex marriage that (in the words of one law professor quoted in the article) “there’s more ego than analysis” in his decision to pursue the case are surely more intense than ever.
Judge Walker isn’t the only judge whose impartiality and judgment the Supreme Court’s opinion expressly calls into question. Ninth Circuit chief judge Alex Kozinski, who engaged in joint gamesmanship with Walker, also receives blame (in his capacity as chair of the Ninth Circuit Judicial Council) for evading procedural rules in order to broadcast the anti-Prop 8 trial and for hastily adopting a pilot program without putting in place carefully considered guidelines. (See, e.g., slip op. at 12, 14, 15.)
Kozinski — whom, I repeat, I regard as an excellent judge when he’s not indulging his willfulness — has earned a reputation as a headstrong maverick. I’m sure that it’s no secret to the justices that he’s resorted to other hijinks to favor the cause of same-sex marriage, and it’s a safe bet that his actions in this case deepened their distrust of him.
The Ninth Circuit’s history of lawlessness means that any adventuresome ruling it makes reaches the Supreme Court with special suspicion attached to it. Kozinski’s course of conduct makes it likely that any Ninth Circuit ruling in favor of a constitutional right to same-sex marriage will be even more suspect.
It would also be good for Kozinski to provide transparency — if not with the public, at least with his Ninth Circuit colleagues — on any further procedural decisions in this case (including panel assignment on appeal) to ensure that they are regular.
Over the coming week or so, you can expect plaintiffs’ counsel in the anti-Prop 8 to try to show that various sponsors of Prop 8 drew from their traditional religious beliefs unfavorable views of homosexual conduct; that the official campaign messaging must be deconstructed by left-wing academic partisans of same-sex marriage to reveal the messaging’s supposed hidden subtext of appeals to anti-homosexual bigotry; and that the votes of the more than seven million Californians who supported Prop 8 must be deemed to reflect that bigotry.
This is the wild witchhunt that Judge Walker has authorized and indeed encouraged plaintiffs’ counsel to conduct as the prime attraction in his intended show trial. In this series of posts, I will outline how legally unsound and abusive this witchhunt is. In particular, I expect to develop the following points in roughly this order:
1. The legal question whether Proposition 8′s restoration of the traditional definition of marriage amounts to unconstitutional discrimination against homosexuals does not turn on the subjective motivations of the more than seven million California voters who supported Prop 8, much less on the motivations or messages of Prop 8′s sponsors. The question, instead, is whether the traditional definition of marriage necessarily reflects an irrational or otherwise impermissible animus against homosexuals (and Walker himself has conceded that the answer to that question is no).
2. Beyond Walker’s mistake of trying to determine voter intent based on the messages of Prop 8′s sponsors, it’s absurd to give those messages anything other than their ordinary meaning and to give wildly disproportionate weight to stray messages that did not reach a large audience.
3. Walker’s witchhunt, including his approval of scorched-earth document and deposition discovery of the internal communications of Prop 8 sponsors, threatens an unprecedented judicial intrusion on American politics and a trampling of cherished First Amendment rights of political participation.
Does Proposition 8′s restoration of the traditional definition of marriage amount to unconstitutional discrimination against homosexuals? Rather than decide this question, one way or the other, as a matter of law, Judge Walker concluded — with few if any signs of careful analysis — that this question turns on various factual issues that need to be resolved through trial testimony. One of those factual issues is whether Proposition 8 was “passed with animus.” (I’m quoting from the transcript of the October 14, 2009, summary-judgment hearing.) In other words, rather than decide whether the traditional definition of marriage necessarily reflects an irrational animus against homosexuals, Walker is purporting to conduct a factual determination of the subjective intentions of the more than seven million California voters who supported Proposition 8.
Let’s start with the patent absurdity of the task of determining the subjective intentions of more than seven million California voters. Walker himself implicitly acknowledges that there were legitimate, constitutionally permissible grounds for supporting Proposition 8. (If there weren’t, there would be no reason for a trial.) Set aside the fact that Walker has given no guidance on the line between legitimate and illegitimate grounds. How can he possibly discern on what grounds various California voters acted? And even if he could, what about voters who had multiple grounds, some legitimate, some not? Is he going to determine which grounds predominated? Or does the existence of any illegitimate motive somehow taint the vote of someone who also had legitimate motives? Is Walker going to try to quantify the number of “bad” voters and then adjust the final tally on Proposition 8 to see whether it still would have passed? If so, is he also going to explore the motives of voters against Proposition 8, since it’s surely possible that some or many of them may have voted on illegitimate grounds (e.g., anti-religious animus)?
Given how insane and unworkable Judge Walker’s factual inquiry into voter animus is, it should be no surprise that it’s contrary to established precedent.
In Southern Alameda Spanish Speaking Organization v. City of Union City, 424 F.2d 291, 295 (9th Cir. 1970), the Ninth Circuit, addressing a claim that a city-wide voter referendum on zoning was racially motivated (rather than being based on legitimate environmental grounds), explained that Supreme Court precedent judged purpose “in terms of ultimate effect and historical context.” The subjective motivation of voters was therefore beyond the scope of judicial inquiry:
Under the facts of this case we do not believe that the question of motivation for the referendum (apart from a consideration of its effect) is an appropriate one for judicial inquiry….
As the District Court noted, “There is no more reason to find that [the adoption
of the referendum] was done on the ground of invidious racial discrimination any more than on perfectly legitimate environmental grounds ….
If the voters’ purpose is to be found here, then, it would seem to require far more than a simple application of objective standards. If the true motive is to be ascertained not through speculation but through a probing of the private attitudes of the voters, the inquiry would entail an intolerable invasion of the privacy that must protect an exercise of the franchise.
Similarly, the Sixth Circuit in 1997 re-affirmed that a court reviewing the constitutionality of a voter-adopted measure “may not even inquire into the electorate’s possible actual motivations for adopting a measure via initiative or referendum. Instead, the court must consider all hypothetical justifications which potentially support the enactment.” Equality Foundation of Greater Cincinnati, Inc. v. City of Cincinnati, 128 F.3d 289, 294 n. 4 (6th Cir. 1997). The court relied on an earlier ruling (its 1986 decision in Arthur v. City of Toledo) in which it had carefully addressed Supreme Court precedent on the matter.
In sum, Walker’s inquiry into the subjective motivations of California’s voters is an unlawful fool’s errand.
Even if it were proper for Judge Walker to try to discern the subjective motivations of California’s voters in adopting Prop 8, there is no basis for Walker’s peculiar and convenient assumption that the messages of Prop 8′s sponsors played some determinative role in shaping a voter’s decision to vote for Prop 8.
In his oral ruling at the summary-judgment hearing, Walker, in explaining why trial was supposedly necessary on the issue of discriminatory intent, stated:
Plaintiffs point to evidence of the disconnect between the Proposition 8 campaign messages, [on the one hand,] and the state interests claimed[, on the other,] to argue that whether Proposition 8 was passed with a discriminatory intent remains in dispute.
Given all the discussion about Prop 8 in newspapers, on television and radio, among friends and neighbors, and on the Internet, what possible basis is there for giving central importance to this purported disconnect between the messages of Prop 8′s sponsors and the state interests that Prop 8 advances?
Insofar as it might (in a hypothetical alternative legal universe) be relevant to look to the messages of Prop 8′s sponsors to discern voter intent, the arguments made by the Prop 8 sponsors in the official voter information guide that the state of California sent to all voters would surely deserve priority over other messages. Here’s the full text (emphases in original) of those arguments:
Proposition 8 is simple and straightforward. It contains the same 14 words that were previously approved in 2000 by over 61% of California voters: “Only marriage between a man and a woman is valid or recognized in California.”
Because four activist judges in San Francisco wrongly overturned the people’s vote, we need to pass this measure as a constitutional amendment to RESTORE THE DEFINITION OF MARRIAGE as a man and a woman.
Proposition 8 is about preserving marriage; it’s not an attack on the gay lifestyle. Proposition 8 doesn’t take away any rights or benefits of gay or lesbian domestic partnerships. Under California law, “domestic partners shall have the same rights, protections, and benefits” as married spouses. (Family Code § 297.5.) There are NO exceptions. Proposition 8 WILL NOT change this.
YES on Proposition 8 does three simple things:
It restores the definition of marriage to what the vast majority of California voters already approved and human history has understood marriage to be.
It overturns the outrageous decision of four activist Supreme Court judges who ignored the will of the people.
It protects our children from being taught in public schools that “same-sex marriage” is the same as traditional marriage.
Proposition 8 protects marriage as an essential institution of society. While death, divorce, or other circumstances may prevent the ideal, the best situation for a child is to be raised by a married mother and father.
The narrow decision of the California Supreme Court isn’t just about “live and let live.” State law may require teachers to instruct children as young as kindergarteners about marriage. (Education Code § 51890.) If the gay marriage ruling is not overturned, TEACHERS COULD BE REQUIRED to teach young children there is no difference between gay marriage and traditional marriage.
We should not accept a court decision that may result in public schools teaching our kids that gay marriage is okay. That is an issue for parents to discuss with their children according to their own values and beliefs. It shouldn’t be forced on us against our will.
Some will try to tell you that Proposition 8 takes away legal rights of gay domestic partnerships. That is false. Proposition 8 DOES NOT take away any of those rights and does not interfere with gays living the lifestyle they choose.
However, while gays have the right to their private lives, they do not have the right to redefine marriage for everyone else.
CALIFORNIANS HAVE NEVER VOTED FOR SAME-SEX MARRIAGE. If gay activists want to legalize gay marriage, they should put it on the ballot. Instead, they have gone behind the backs of voters and convinced four activist judges in SanFrancisco to redefine marriage for the rest of society. That is the wrong approach.
Voting YES on Proposition 8 RESTORES the definition of marriage that was approved by over 61% of voters. Voting YES overturns the decision of four activist judges. Voting YES protects our children.
Please vote YES on Proposition 8 to RESTORE the meaning of marriage.
These arguments should be taken to have their ordinary meaning. Set aside for now the question (an easy question, I believe) whether the objective meaning of these arguments appeals to constitutionally permissible or impermissible grounds for supporting traditional marriage. My limited point here is that a further inquiry into the subjective motivations of Prop 8′s sponsors has no bearing on that objective meaning.
For what it’s worth, I’ll add that it’s my understanding that the pro-Prop 8 campaign’s overall messages were very much along the lines of its arguments in the voter information guide.
In carrying out his insane inquiry into the subjective intentions of the more than seven million California voters who supported Proposition 8, Judge Walker authorized scorched-earth document and deposition discovery that threatens severe damage to citizen participation in voter initiatives and to the American political processes more generally.
In addition to his peculiar assumption that the messages of Prop 8′s sponsors played some determinative role in shaping those intentions, Walker declined to give those messages their objective meaning. Instead, he authorized the plaintiffs to obtain discovery of the private communications of Prop 8′s sponsors, including communications with their political consultants, on the theory that those communications, “even about messages contemplated but not actually disseminated, could fairly lead to admissible evidence illuminating the messages disseminated to voters” (emphasis added).
In granting an extraordinary writ of mandamus, a Ninth Circuit panel (consisting of three Clinton appointees) ruled that Walker’s discovery order had seriously underprotected the First Amendment associational rights of Prop 8′s sponsors. But the panel held that the broader disputes over whether it was proper at all for Walker to try to discern voters’ subjective intentions and, even if so, to look behind the actual public messages of Prop 8′s sponsors were “beyond the scope of this appeal.” It therefore “assume[d] without deciding that the district court has decided these questions correctly.” Further, in a curious amendment to its original opinion, the panel limited the First Amendment privilege to “communications among the core group of persons engaged in the formulation of campaign strategy and messages” (emphasis added).
In the end, Prop 8′s individual sponsors, the ProtectMarriage.com campaign, and the members of its executive committee were required to provide to plaintiffs all records of communications relating to the formulation of campaign strategy and messages that went beyond the “core group of persons” that the magistrate judge assisting Walker designated. Following their attorneys’ review of more than 100,000 documents (that’s documents, not the much higher number of pages of documents), they ultimately were forced to hand over many thousands of documents, including e-mails, internal strategy memos, meeting minutes, draft ads, and other confidential campaign information. Never before has there been such a sweeping judicial invasion of core political speech rights and associational rights.
Indeed, the judicial invasion also transgressed the religious-liberty rights of religious organizations that supported Prop 8, as Judge Walker also required that church officials who were individual sponsors of Prop 8 or on the executive committee of the ProtectMarriage.com campaign make available internal church communications in their possession relating to Prop 8.
If the legal positions that Judge Walker adopted in authorizing this intrusive and burdensome (and irrelevant) discovery are accepted, they will have a severe chilling effect on citizen participation in voter initiatives. How many citizens will volunteer for initiative campaigns if they discover that in Walker’s wacky world they may have to endure the burdens of complying with deposition and document requests (including retaining counsel), much less the risk that their private communications will be made public and be distorted or ridiculed to advance someone else’s political agenda in the courts?
Indeed, I see no principled reason why Walker’s inquiry into subjective voter intent on initiatives wouldn’t also warrant an inquiry into subjective voter intent on election of candidates for political office. Assume, for example, a lawsuit contending that voters in a state acted on illegitimate racial grounds in voting for (or against) Barack Obama as president. Why wouldn’t Walker’s approach justify sweeping discovery into the internal communications of the pro-Obama (or anti-Obama) campaign on the formulation of campaign strategy and messaging?
I haven’t researched the scope of immunity that legislators have, whether in Congress or in the 50 states, from discovery requests in civil litigation, but I also see no principled reason apart from any such immunity why Walker’s exploration into the private communications of Prop 8′s sponsors would not justify a similar exploration into the private communications of legislators related to a challenged piece of legislation. Indeed, the private communications of legislators would plainly be far more revealing of their subjective motivations as voters than the private communications of Prop 8′s sponsors are of the subjective motivations of the more than seven million Californians who voted for Prop 8. And why should any principles of legislative immunity pose a more insuperable obstacle to judicial inquiry than did the First Amendment rights that Walker so recklessly trampled?
In sum, in indulging his evident animus against supporters of Prop 8, Judge Walker poses a severe and lasting threat to core political rights.
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 seven million Californians who voted in support of Prop 8.
Take Walker’s permitting a parade of anti-Prop 8 witnesses at trial wh
o 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.