[Guest post by Aaron Worthing; if you have tips, please send them here. Or by Twitter @AaronWorthing.]
This is a long one and there is a lot of background to cover before getting to the really interesting stuff. So strap yourself in.
One of the most damning pieces of evidence of Judge Vaughn Walker’s bias in the Proposition 8 trial was his handling of the “cameras in the courtroom” issue.
Now let me start with two principles. The first is my belief that as a rule of thumb, if we the public have a right to be present at an event, we have the right to have it recorded and rebroadcast. Obviously the constitution’s literal wording doesn’t demand that outcome, but policymakers can and should be moved by the policy underneath it which is that the people should be given the greatest opportunity to scrutinize the conduct of its government, including the Least Dangerous Branch. So my sympathies tend to lie with anyone who wanted to broadcast the Proposition 8 trial.
Second, I believe in something more basic: that it’s not enough to do the right thing, but to do the right thing the right way. Outcomes matter, of course, but following procedures does, too. That is based in part on my belief that if we do things the right way, we are more often going to get the right result, even if individual cases end up coming out wrongly.
So if you wanted to say that Judge Walker had the right goal in trying to set things up so that the Proposition 8 trial would be seen on TV, well… I won’t say you are right, but I would lean in that direction. But the fact is he violated the administrative procedures in attempting to arrange for the broadcast of the trial. You see the local court rules didn’t allow for that, so they had to be revised. Typically the revision of rules required that the new rule be proposed, that the public be given thirty days to comment on it and/or object, and then at the end of the period either the rule is adopted, or a new revision is proposed and the process starts all over again. But as noted in Hollingsworth v. Perry, that isn’t exactly what happened:
On December 21, a coalition of media companies requested permission from the District Court to televise the trial challenging Proposition 8. Two days later, the court indicated on its Web site that it had amended Civil Local Rule 77–3, which had previously banned the recording or broadcast of court proceedings. The revised version of Rule 77–3 created an exception to this general prohibition to allow “for participation in a pilot or other project authorized by the Judicial Council of the Ninth Circuit.” Id., Exh. 14. Applicants objected to the revision, arguing that any change to Ninth Circuit or local rules would require a sufficient notice and comment period.
On December 31, the District Court revised its Web site to remove the previous announcement about the change to Rule 77–3. A new announcement was posted indicating a “proposed revision of Civil Local Rule 77–3,” which had been “approved for public comment.” Id., Exh. 17. The proposed revision was the same as the previously announced amendment. Comments on the proposed revision were to be submitted by Friday, January 8, 2010.
On January 4, 2010, the District Court again revised its Web site. The announcement regarding the proposed revision of Rule 77–3 was removed and replaced with a third version of the announcement. This third version stated that the revised Rule was “effective December 22, 2009,” and that “[t]he revised rule was adopted pursuant to the ‘immediate need’ provision of Title 28 Section 2071(e).” Id., Exh. 19, at 3.
You got that? So first they said that the rule had been changed without that pesky comment period. Then they dialed it back to a proposed rule. Then someone decided that the emergency exception applied. And indeed the Supreme Court noted that this invocation was not appropriate, either:
In dispensing with public notice and comment the District Court invoked the “immediate need” exception. 28 U. S. C. §2071(e). It did so through a Web site posting on January 4—prior to the expiration of the comment period—indicating that Rule 77–3 had been revised to permit participation in the Ninth Circuit’s pilot program. These postings gave no explanation for invoking the exception. At trial the District Court explained that theimmediate need here was to allow this case to be broadcast pursuant to the Ninth Circuit’s new pilot program. See Exh. 1, p. 11, Supp. App. to Response for Perry et al.
This does not qualify as an immediate need that justifies dispensing with the notice and comment procedures required by federal law. While respondents (the plaintiffs in the District Court) had indicated their approval of the plan, no party alleged that it would be imminently harmed if the trial were not broadcast
So the Supreme Court stayed Judge Walker’s ruling and eventually issued a mandamus preventing broadcast of any videos of the trial. A mandamus is called an “extraordinary writ” and this certainly was the case here. Their conclusion was about as harsh as things get when the Supreme Court rebukes a sitting judge:
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.
Make no mistake on this. The Supreme Court believed that Judge Walker was actually biased in this case and all but said it. Any lawyer reading this knows that this is a stinging rebuke. The case went forward, meanwhile, with Judge Walker ordering the trial to be taped, with the promise that the video would not be broadcast–which is not terribly unusual for in this practicing attorney’s experience. Further Judge Walker ordered the video recording to be placed under seal. But then Judge Walker decided to go and broadcast part of the trial anyway. You can even see the relevant portions of the presentation he was giving, here:
And you can watch the whole presentation, here.
The point isn’t whether the clips are themselves objectionable or not, but the fact that these represented a violation of the judge’s own order. And what did Judge Walker have to say about this? Well, when the Proposition 8 proponents filed for an order either stopping these broadcasts, or requiring Judge Walker to turn over the recordings, he replied with a letter in which he explained that he was giving a lecture on the cameras in the courtroom, and gee, felt that these were such great examples he had to use them:
In the first several cameras in the courtroom lectures, I used a re-enactment of cross-examination from Perry. When given the disk [A.W.: after his request, that is.] containing the Perry videos…, I decided that in the presentation on February 18 at the University of Arizona it would be permissible and appropriate to use the actual cross-examination excerpt from Perry[.]
And if you are looking for an explanation, that’s just about all he provides, except toward the end when he says this:
The Perry case involved a public trial. As Chief Justice Berger observed some years ago, “People in an open society do not demand infallibility in their institutions, but it is difficult for them to accept what they are prohibited from observing.”
In other words, “the Supreme Court was wrong to stop me from broadcasting the trial, so frak them.” I mean, it is really hard to read that last paragraph as anything but a middle finger directed at the Supreme Court.
I would also add that those words are ironic given that he doesn’t want us to know certain critical facts about his personal life that bear on whether he could impartially rule in the Proposition 8 case.
He also thought this was relevant, too:
I should also note that the video of the entire Perry trial was made available to the parties in that case and portions were used in closing arguments[.]
Except he doesn’t mention that they were under strict orders not to disclose those recordings outside of parties to the case. So there is that.
Now his pedagogical purpose in using the clips was undoubtedly sound. If one of the reasons why you feel that trials should be broadcast is that it brings the case to life in a way no re-enactment or transcript reading could, then surely one of the best ways to make this point would be to show actual clips. But while that explains why it is necessarily generally to show a video from a real trial, it doesn’t explain why he should be showing broadcasts from this trial. There are literally hundreds of thousands of hours from other cases available to anyone who wants to show an actual trial. Trials are transmitted all the frickin’ time and he would have no problem finding illustrative examples in cases that he himself didn’t place under seal. And I will add that as a retired judge he had no power to lift that seal.
And like I said, as an example of his biased conduct, it is hard to get a clearer example of that (I mean, besides pretending that the evangelical Christians who wrote the Fourteenth Amendment intended to legalize gay marriage). I suppose he decided all the rules and orders that prevented him from doing this thing were living documents whose meaning could change as time went on, right?
And in terms of the reason for his biased behavior, well he has only strengthened the concern that his sexual orientation is problematic. As you will remember about eleven days ago, I harassed the SF Chronicle’s reporter Bob Egelko for his decision not to learn and report about Judge Walker’s relationship with another man. He admitted that “[i]f Judge Walker had a marriage license application pending or immediate plans to marry, he would be ruling on a case that affected his rights” but then several emails later wrote that “He spoke some about his partner, but I think it’s a private matter that’s pretty much his business, not ours.” So he admits that under the right factual situation there would be a problem, but then apparently doesn’t think it’s our business to find out if that factual situation exists. That be good reporting, thar!
Well, I found out the other day that the relationship was a tad more serious than previously reported. As in, it has lasted for ten years. That was first brought to my attention by John Eastman, writing a post on an opinion blog at the SF Chron. And in order to back up that fact, he has to cite an outside link to a Reuters report. Shame on the SF Chronicle for not even reporting that fact. There is no word on whether anyone asked whether Judge Walker had any desire or plans to marry his significant other, should his ruling be upheld, or what that answer might be. Isn’t it great to have reporters who doggedly pursue the truth?
And over at the National Review, Ed Whelan makes the case that this ten-year relationship is enough to have justified disclosure if not recusal. You should read the whole thing, but here are some highlights. He first recounts all the different ways that Judge Walker himself said that gay people were harmed by exclusion from the institution of marriage:
Among the findings of fact that Walker offered in support of his ruling were that “Proposition 8 increases costs and decreases wealth for same-sex couples,” that marriage “benefits both spouses by promoting physical and psychological health,” that “marriage is widely regarded as the definitive expression of love and commitment in the United States,” and that “Proposition 8 places the force of law behind stigmas against gays and lesbians.”
So it is more than a little contradictory to pretend the judge has nothing at stake in this case, given that the judge himself believed. And as Whelan points out, the issue isn’t whether the judge subjectively believes he or she could be objective, but whether a reasonable observer informed of all relevant facts would believe that Judge Walker was biased:
Whether Walker had any subjective interest in marrying his same-sex partner — a matter on which Walker hasn’t spoken — is immaterial under section 455(a). (If Walker did have such an interest, his recusal also would be required by other rules requiring that a judge disqualify himself when he knows that he has an “interest that could be substantially affected by the outcome of the proceeding.”) Walker’s own factual findings explain why a reasonable person would expect him to want to have the opportunity to marry his partner: A reasonable person would think that Walker would want to have the opportunity to take part with his partner in what “is widely regarded as the definitive expression of love and commitment in the United States.” A reasonable person would think that Walker would want to decrease the costs of his same-sex relationship, increase his wealth, and enjoy the physical and psychological benefits that marriage is thought to confer.
Because Walker was deciding how the law in the very jurisdiction in which he lived would directly govern his own individual rights on a matter that a reasonable person would think was very important to Walker personally, it is clear that Walker’s impartiality in Perry “might reasonably be questioned.”
So it is not necessary to say that the decision was actually skewed. But then remember that bit about the cameras in the courtroom. And certainly read this indictment by Whelan of all the other misconduct he has engaged in. Normally we stop these inquiries merely at the recognition that the judge had an interest in the case, without asking whether his interest led him to bend the case in one direction or the other. But here we can see that the judge had a reason to favor the anti-Proposition 8 side of the case, and then actually favored them.
One of the most ancient principles of justice in our system is one stated succinctly in Federalist #10: “No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.” This reflected backward in time from Dr. Bonham’s case down to the present as one of the bedrock principles of due process. But by Judge Walker’s own words, he and every gay person in a committed relationship had an interest in legalized gay marriage. It, according to Walker, would increase his wealth, the psychical and psychological health of the partners, and it would remove a stigma upon gay marriage itself. He had profound interest in the outcome of the trial and it is clear that he acted to reach the outcome that would give him the opportunity to reap the maximum benefit, psychologically and financially. Occam’s razor tells us that Judge Walker didn’t rule as a judge but as a gay man who might someday wish to marry his significant other.
He should have disqualified himself from the trial. He has tainted the case with his presence. And we can only be glad that he is retired, now.
And please don’t claim to me that everyone has a stake in the case because some heterosexuals believe that gay marriage weakens the institution of marriage, and therefore we shouldn’t care about Walker’s bias. That’s cute logically but it fails because it treats all bias as equal. By that logic everyone is biased, and when you have a situation like that, you find the judge with the least bias.
Let me give you a practical example. There have been some rumblings for some years about suing to increase federal judicial salaries. As you might know, the Constitution prohibits Congress from reducing the salary of a judge. These people I have spoken to, however, want to argue that the Constitution demands a regular cost of living adjustment. Now never mind sticky questions, like what would be considered when counting inflation. For instance, the Federal Reserve doesn’t think that food prices count when calculating inflation, but the fact you can buy an Ipad 2 for the same price as an Ipad 1, but it is twice as powerful should count, leading one person to respond: ”I can’t eat an iPad.” But more fundamentally than that, this assumes that the founders forgot there was such a thing as inflation.
But before we get to all that fun, let’s note that there isn’t a single federal judge who wouldn’t have an interest in the outcome of that hypothetical case. But that doesn’t mean that you disqualify the entire federal bench. It just means you recognize that this problem can’t be solved and let a federal judge rule despite the fact that he or she is deciding what his or her own salary would be. But suppose that a judge’s lot is chosen and they find out that the lead plaintiff’s lawyer in the case is that judge’s wife. Do we ignore that direct bias because every judge is biased to a degree? Or do we instead pick the least biased, by finding a judge who is not married to the lead plaintiff’s attorney?*
I know what answer the courts normally give.
* Whether the judge being married to an attorney appearing before him would help that side, or hurt it, is another matter.
[Posted and authored by Aaron Worthing.]