Patterico's Pontifications

6/13/2011

Just a Reminder: Judge Ware to Hear the Motion to Vacate Judge Walker’s Proposition 8 Ruling Today (Update: The Hearing’s Over)

Filed under: General — Aaron Worthing @ 9:12 am

[Guest post by Aaron Worthing; if you have tips, please send them here.  Or by Twitter @AaronWorthing.]

Update: A number of twitterers who were there agree that the judge has expressed an intention of releasing a ruling within 24 hours.

Yes, that hearing is today.  Walker has not, to my knowledge, been called to that hearing, but he will be there for another hearing on his use of video from the trial (in violation of his own order).

The disgusting thing in reading this is that virtually none of the people opposing this motion deal with the issue honestly, pretending that this is simply based on the judge’s orientation.  The motion is crystal clear that it is concerned that the judge has an interest in marrying, and is therefore possibly literally deciding on his own rights.

As I wrote before:

By issuing a statewide injunction applying to all gay couples, that meant that if the ruling was upheld, and the stay is lifted, Judge Walker could go to a justice of the peace, and request that this person marry him to his long-term same-sex partner.  And if that JP refused, the Judge could then go back to the federal court and move that the Justice of the Peace be held in contempt of his own order.  Indeed, if he was not retired, according to the Anti-Proposition 8 forces, he could sit in judgment in the contempt proceedings.

And really this search should turn up many, many articles on the subject of this recusal.

The question I have is this.  After months of media malpractice on the subject, how shocked will Proposition 8 opponents be if the decision is overturned?

We’ll just have to wait and see.  By reports it might be going on as I write this.

Update: “Mitch” makes a fair point in the comments.  The only thing reasonably certain to occur today is that the judge will hear the case.  Whether or not he will rule in the matter today is anyone’s guess.  I have seen judges rule on the spot, but its far from guaranteed.  So the headline has been appropriately changed.

Update: Howard Mintz is liveblogging the hearing.

Update: This site is trying to transcribe it, live.  They report that the proponents already lost the issue of the tapes.  They are pro-gay-marriage, so don’t expect any sympathy for the proponents.

[Posted and authored by Aaron Worthing.]

128 Responses to “Just a Reminder: Judge Ware to Hear the Motion to Vacate Judge Walker’s Proposition 8 Ruling Today (Update: The Hearing’s Over)”

  1. I guess I can’t get too worked up over this.

    Gays marrying will have precisely zero effect upon society.

    That the judge arranged for this underhandedly is wrong, seriously wrong. And it bodes ill for other decisions where a judge issues a ruling that appears to be based upon pure bias.

    But the issue at hand – that two people can marry – is such a minor detail. I’m not losing any sleep over it.

    steve miller (149336)

  2. steve

    for me the judge’s bias is a much more dominating issue.

    Aaron Worthing (e7d72e)

  3. how shocked with will Proposition 8 supporters be

    Since, as you wrote, “virtually none of the people opposing this motion deal with the issue honestly, pretending that this is simply based on the judge’s orientation,” I would guess that Proposition 8 opponents would be more shocked than proponents would if the ruling is overturned. The legal experts who oppose the motion have convinced their supporters (and themselves) that the motion is completely without merit.

    aunursa (a2a019)

  4. Nitpick with the headline: We don’t know that Ware will “rule on” the motion today, just that he will hold a hearing on it. It’s possible that he will “rule from the bench,” but it’s more common for judges to “take the matter under submission” and issue a written opinion afterwards, particularly in highly-charged cases.

    Mitch (890cbf)

  5. I think a Gay Marriage advocate should see the case like this: A slave made judge ruling over whether slavery is unconstitutional.

    Sure, he will rule it is unconstitutional. he will be right. But he was also ruling on something that affects him personally. That’s improper. It’s better to have the law presided over without impropriety.

    And why not let the damn voters handle political questions? Oh never moind.

    Dustin (c16eca)

  6. The judge is a crook. He ought to lose his pension and be jailed for 3 or 4 years.

    ropelight (b4b00f)

  7. how can we be sure Judge Ware doesn’t, you know, dabble?

    happyfeet (a55ba0)

  8. dustin

    no offense, dude, but that is kind of a crappy metaphor.

    the former slave doesn’t have a stake in the outcome of the hearing, he just has an emotional attachment to the issue.

    i lay it out simply.

    imagine if your right to marry the woman (or man) you love is on the docket. could you be impartial?

    of course not.

    Aaron Worthing (e7d72e)

  9. Considering that judges recuse themselves for piddling stock positions, this shouldn’t be a hard decision.

    Kevin M (73dcc9)

  10. kevin

    geez, you said a mouthful. i would be much more likely to be swayed by the love of the woman who is now my wife, than a few bucks.

    Aaron Worthing (e7d72e)

  11. the former slave doesn’t have a stake in the outcome of the hearing, he just has an emotional attachment to the issue.

    I meant a slave who was concurrently a judge.

    No one said my metaphors had to be realistic.

    imagine if your right to marry the woman (or man) you love is on the docket. could you be impartial?

    of course not.

    I guess I don’t really need a metaphor to clarify something that is already pretty clear.

    Dustin (c16eca)

  12. For those who think Judge Walker was not disqualified, let me ask a few questions.

    If a judge hears a fraud suit against a corporation, and his son works there, under what circumstances would he be required to recuse himself from the case? Would it be a breach of judicial ethics if the judge knew about his son’s employment with the firm and refused to disclose it?

    If a judge hears a sex discrimination suit against a school alleging that the school’s music program discriminates against girls, and her daughter attends the school, under what circumstances would she be required to recuse herself? Would it be a breach of judicial ethics if she refused to disclose her daughter’s attendance at the school?

    What should be the remedy if the judge refuses to disclose information he knew to be important until months after the trial court’s decision?

    The legal experts who oppose the motion have convinced their supporters (and themselves) that the motion is completely without merit.

    Amazing that I, a non-lawyer, can understand this issue better than so many self-described legal experts? Are they deluded, dishonest, or both.

    There is no reason to believe that Walker would have had a 455 (b) disqualification in a constitutional challenge against “Don’t Ask, Don’t Tell” law. A federal judge who is in the Reserves or National Guard might be disqualified under that section, depending on the relief sought by the plaintiff.

    Michael Ejercito (64388b)

  13. UPDATE:

    James Ware was grilling the pro-Prop 8 attorneys.

    This should not be surprising, nor should it be taken as an interpretation that Ware is biased against the proponents. It is proper for judges in these kind of hearings to grill the party making the motion.

    Michael Ejercito (64388b)

  14. UPDATE:

    Now it is the turn of the opponents of the motion. Theodore Boutrous claims that the motion was sought merely because Judge Walker was gay.

    Ware then asked what the harm would be, aside from delay, in vacating the motion and assigning the case to a judge without any doubts about bias.

    Ware also said he was not inclined to use timeliness as a basis to decide the motion. this indicates he at least recognizes that the issue was not of sexual orientation (which would be untimely) but of the long-term same-sex relationship.

    Michael Ejercito (64388b)

  15. um, yeah, if you follow my twitter, you will see me heckling people about this, and retweeting some significant comments being reported.

    and this list is the very pro-gay-marriage group live tweeting it.

    @moyalynne/prop-8-trial

    so there is a filter there, but you still get a sense how this is going…

    Aaron Worthing (e7d72e)

  16. um, yeah, if you follow my twitter, you will see me heckling people about this, and retweeting some significant comments being reported.

    and this list is the very pro-gay-marriage group live tweeting it.

    @moyalynne/prop-8-trial

    so there is a filter there, but you still get a sense how this is going…

    I notice that they do not understand the legal issues.

    Michael Ejercito (64388b)

  17. lol no crap. but it still gives you a window into what is happening. other than flying to san fran, there you go…

    Aaron Worthing (e7d72e)

  18. I think one factor that is heavily in Proponents’ favor is Walker’s refusal to disclose.

    Had Walker disclosed his relationship and unequivocally denied any direct, immediate interest in “marrying” his partner, proponents would likely lose a recusal motion on that basis. (Of course, the issue would have been settled before judgment.)

    Michael Ejercito (64388b)

  19. michael

    i don’t get why they don’t just do this? call the judge on the stand and f—ing ask him. yes, we should be skeptical now, but if he says yes, life gets simple.

    Aaron Worthing (e7d72e)

  20. From twitter @ NCLRights

    Stewart further poking holes in #prop8 supporters’ arg about JWalker’s relationship – speculation, innuendo.

    Because of Walker’s refusal to disclose his relationship, it is not just speculation and innuendo.

    This is not the case where a judge made every effort to disclose any possible reason for disqualification. See United States v. Alabama, 574 F. Supp. 762 at 764 n.1. (N.D. Ala. 1983) because of this failure to disclose, bias should be presumed.

    @ AaronWorthing

    They’re right. so why not get walker up on the stand to clear things up?

    Because if Walker takes the stand, proponents’ lawyers get to ask him why he refused to disclose, unlike the judge in Alabama.

    Aaron, feel free to tweet my comments, as long as they are credited

    Michael Ejercito (64388b)

  21. i don’t get why they don’t just do this? call the judge on the stand and f—ing ask him. yes, we should be skeptical now, but if he says yes, life gets simple.

    Because then proponents get to ask why he refused to disclose, unlike the Alabama case where the judge disclosed every possible interest he or his children might have.

    While standards for recusal are strict, standards for disclosure are much more liberal.

    Michael Ejercito (64388b)

  22. Does gay marriage affect straight people negatively? If so, straight judges could not hear the case either. If not, why not just the gays marry if they want to?

    Former Half Term Governor (0abfa8)

  23. “Former …”, that’s not the argument. Never was. So you are arguing about a strawman that’s been refuted repeatedly.

    SPQR (26be8b)

  24. Former Half Term Governor is yet another sock puppeteer. Shocka.

    JD (aae929)

  25. Cooper got spanked on his arguments for recusal. Comment in bold is from the guy doing the transcript, but seems to capture it pretty well.

    C: No. But true that marriage has financial benefits that flow to it for those who participate in marriage. (No sh-t Sherlock. That’s why you lost the case.)

    [cuss word edited. Please don't even quote a cuss word, or you will find your comment filtered. --Aaron]

    carlitos (25ee92)

  26. 22.Does gay marriage affect straight people negatively? If so, straight judges could not hear the case either. If not, why not just the gays marry if they want to?

    Comment by Former Half Term Governor — 6/13/2011 @ 12:27 pm

    there’s a difference between being a member of society that is effected as a whole by the law and being directly effected by the outcome of the case.

    monkeytoe (5234ab)

  27. If so, straight judges could not hear the case either.

    If straight judges had sufficient interest that they would be disqualified from hearing the case, then any straight person would have sufficient interest to intervene and appeal an adverse judgment.

    Michael Ejercito (64388b)

  28. 22.Does gay marriage affect straight people negatively? If so, straight judges could not hear the case either. If not, why not just the gays marry if they want to?

    If teh gheys sue my church for not marrying them, then it does affect me. If I can be guaranteed this won’t happen, and then I don’t care who or what you marry.
    I had to find out after the fact that my child was subjected to “queer theory” in grade school(Orange County California).

    ∅ (e7577d)

  29. The proponents are a little twisted in their logic here. They argue that there is no substantive difference between marriage and civil unions, then they’d have to also argue that Walker did not stand to benefit from the right to marry, right?

    Scott (a9082c)

  30. If not, why not just [let] the gays marry if they want to?

    Because the issue was put to a vote and the people amended their laws democratically to answer a political question.

    A judge saying ‘why not overrule that’ is a terrible argument.

    This is about judicial activism, not gay marriage.

    Dustin (c16eca)

  31. @Dustin – it’s only judicial activism when you disagree with the outcome.

    The real questions are whether the majority has a right to limit a minority’s ability to petition it’s government for a right (Romer vs. Evans, for example); or to take away one group’s rights with animus.

    Scott (a9082c)

  32. michael

    seriously you need your own twitter acct. :-)

    Aaron Worthing (e7d72e)

  33. It is clear that Judge Ware will not be the final word on this issue.

    Reinhardt, Hawkins, and Smith will weigh in on this when Ware’s decision is appealed.

    They argue that there is no substantive difference between marriage and civil unions, then they’d have to also argue that Walker did not stand to benefit from the right to marry, right?

    Proponents never made this argument.

    Michael Ejercito (64388b)

  34. Proponents may not have made that argument, but after Strauss, it’s the law in California.

    Although that’s not exactly fair.

    The CA domestic partner law maintains some distinctions between DPs and marriage, albeit not many. But the combination of Marriage Cases and Strauss seems to override those distinctions, because Strauss interpreted Prop 8. to deny the word ‘marriage’ but left intact Marriage Cases finding that distinctions in the treatment of gay and straight couples must meet strict scrutiny – the result being that the distinctions left by the DP law may or may not still exist, to be determined by litigation-yet-to-come.

    (Example: prior to Marriage Cases, California courts said there was no such thing as a putative domestic partner; it’s not clear if that holding is still valid. Similarly, the rules which courts have established for inferring contracts between long-term unmarried cohabiting partners may or may not apply to gay couples. etc.).

    aphrael (e0cdc9)

  35. Proponents may not have made that argument, but after Strauss, it’s the law in California.

    does this kind of thing have to be preserved for appeal? Oh wait, 9th circuit. Why would I even bother thinking about this in legal terms, if there is no law.

    Dustin (c16eca)

  36. Update on Mintz’s site.

    Cooper gave a short rebuttal argument, which includes the argument that Walker should have disclosed his relationship.

    They report that the proponents already lost the issue of the tapes.

    The proponents conceded that the issue of whether Walker must return the tapes is moot.

    Michael Ejercito (64388b)

  37. Dustin: huh?

    In Marriage Cases, in addition to requiring same-sex-marriage, the California Supreme Court interpreted the state’s constitution to require that discrimination on the basis of sexual orientation be subject to strict scrutiny.

    Prop 8 did not repeal that part of Marriage Cases.

    In Strauss v Horton, the case which decided (among other things) that the claim that the constitutional amendment in prop 8. violated the state constitution was absurd, the California Supreme Court interpreted prop 8. to not override the strict scrutiny holding from Marriage Cases.

    Nobody’s quite sure what this means for the differences between DP and marriage, although it seems pretty clear that each individual difference now has to withstand strict scrutiny in order to survive a challenge.

    That said, the 9th circuit is out of it – this is strictly about state court interpretation of state law. There’s no federal issue whatsoever in that regard.

    aphrael (e0cdc9)

  38. Austin R. Nimocks, senior counsel for the Alliance Defense Fund, held a press conference after the hearing.

    Notably, Nimocks is one of the four ADF attorneys defending Oklahoma’s Question 711 against a federal constitutional challenge after the governor and attorney general refused to do so.

    Michael Ejercito (64388b)

  39. That said, the 9th circuit is out of it – this is strictly about state court interpretation of state law. There’s no federal issue whatsoever in that regard.

    Comment by aphrael

    I thought this case implicated civil rights on a US Constitutional basis.

    Regardless, your ‘huh?’ doesn’t answer my question as to whether your point has to be preserved for appeal. Can you just add in appeals, or did you need to make them before?

    the California Supreme Court interpreted the state’s constitution to require that discrimination on the basis of sexual orientation be subject to strict scrutiny.

    I’m sure there’s a reason, but how does the above relate to the below:

    They argue that there is no substantive difference between marriage and civil unions, then they’d have to also argue that Walker did not stand to benefit from the right to marry, right?

    I thought we were talking about whether Walker stands to benefit.

    Dustin (c16eca)

  40. aph

    i don’t doubt what you say, but that is bad interpretation. a direct slap like that should have made the court question its own interpretation of the constitution.

    Aaron Worthing (e7d72e)

  41. Question:

    In the transcript, the Boutrous claims that his opponents knew about Walker’s bias and didn’t bring it up in the trial. Judge Ware didn’t seem to be buying this “timeliness” argument, but it’s an interesting point.

    [Boutrous today] I think even if court rejects my argument, [it] will still be perceived as bias against gay people. We had a three week trial. Over [the] top. Does not meet any standard. They knew Walker had a relationship based on reports in June of last year. They had an obligation to look judge in [the] eye at time.

    carlitos (25ee92)

  42. Dustin – I was pointing out that the law today is that domestic partnerships are legally equivalent, more or less, to marriage [regardless of whether, as Michael E asserted, the proponents of prop 8 failed to claim that or not].

    Then you responded by asking if something has to be preserved for appeal and bashing the 9th circuit.

    My point to you was: it’s irrelevant. there’s no appeal possible on the subject of whether or not marriage and DP must be as close to equivalent as possible, because the California Constitution has been held to require that, and there is no appeal from the California Supreme Court’s interpretation of the California Constitution.

    There’s a seperate claim, that having different names violates the federal constitution. (Or, alternatively, that granting marriage equality and then revoking it violates due process). That’s the claim currently before the ninth circuit.

    aphrael (e0cdc9)

  43. Aaron – I recall pointing this out (that Prop 8 was silly in some ways because it didn’t undo the strict scrutiny rule, which was IMO the most important part of the Marriage Cases) during the debate over Proposition 8.

    The sense I got was that the people who supported Proposition 8 wanted to keep it just about marriage and that they were afraid that if they tried to tie it up with domestic partnerships, or with strict scrutiny, they would fail, because that would make it easier for the anti-prop-8 forces to characterize it as being about homosexuality in general.

    Note that half a dozen or more attempts have been made to repeal domestic partnerships, and they’ve all failed to gather enough signatures to qualify for the ballot.

    (Here’s the court’s explanation, with emphasis added)
    ———-

    The California court’s interpretation of Prop 8 in Strauss was as narrow is it could possibly have been: prop 8, they said, is just about the word marriage.

    [W]e properly must view the adoption of Proposition 8 as carving out an exception to the preexisting scope of the privacy and due process clauses of the California Constitution as interpreted by the majority opinion in the Marriage Cases, supra, 43 Cal.4th 757. The scope of the exception created by Proposition 8, however, necessarily is determined and limited by the specific language and scope of the new constitutional provision added by the ballot measure. Here the new constitutional provision (art. I, § 7.5) provides in full: “Only marriage between a man and a woman is valid or recognized in California.” By its terms, the new provision refers only to “marriage” and does not address the right to establish an officially recognized family relationship, which may bear a name or designation other than “marriage.”

    Accordingly, although the wording of the new constitutional provision reasonably is understood as limiting use of the designation of “marriage” under California law to opposite-sex couples, and thereby modifying the decision in the Marriage Cases, supra, 43 Cal.4th 757, insofar as the majority opinion in that case holds that limiting the designation of “marriage” to the relationship entered into by opposite-sex couples constitutes an impermissible impingement upon the state constitutional rights of privacy and due process, the language of article I, section 7.5, on its face, does not purport to alter or affect the more general holding in the Marriage Cases that same-sex couples, as well as opposite-sex couples, enjoy the constitutional right, under the privacy and due process clauses of the California Constitution, to establish an officially recognized family relationship. Because, as a general matter, the repeal of constitutional provisions by implication is disfavored (see, e.g., In re Thiery S. (1979) 19 Cal.3d 727, 744; Warne v. Harkness (1963) 60 Cal.2d 579, 587-588),Proposition 8 reasonably must be interpreted in a limited fashion as eliminating only the right of same-sex couples to equal access to the designation of marriage, and as not otherwise affecting the constitutional right of those couples to establish an officially recognized family relationship.

    aphrael (e0cdc9)

  44. As an aside, one of the reasons I find Perry hard to care about is, in the end, it’s entirely about the name.

    aphrael (e0cdc9)

  45. It has always been about the name for some/most, aphrael.

    JD (b98cae)

  46. All of our rights and protections from the state in the Constitution are put down in words. If politicians or special interest groups can change the meaning of those words without the approval of the voters then we have no rights or protections. They can be taken away by changing the meaning of the words. If “the right to keep and bear arms” can be interpreted as only meaning sporting arms then the very stated reason for the Second Amendment has been taken away by the usurpers it was meant to protect us from. That is the greatest harm I see in this issue. All of our rights disappear if 5,000 years of clear meaning can be tossed.

    Machinist (b6f7da)

  47. They knew Walker had a relationship based on reports in June of last year.

    Those reports merely stated that Walker was observed to have attended bar functions with a companion, a physician. It was attributed to unnamed colleagues of Judge Walker, and was not confirmed by the judge himself. And those reports did not have any details about the nature or duration of the relationship. Indeed, had proponents sought recusal at the time on the basis of these reports, the motion would have rightly been rejected. See Clemens v. United States District Court
    , 428 F.3d 1175,1178 (9th Cir. 2005)(stating that a recusal motion may not be based merely on “[r]umor, speculation,beliefs, conclusions, innuendo, suspicion,”)

    But would not the proponents’ motion be based upon speculation that Walker might have wanted to “marry” his partner? But there is more to the idea than just speculation. It is backed up by the fact that Walker refused to disclose his relationship prior to the trial, and that he had made a series of irregular, unprtecedented rulings overturned by emergency reversals by the Ninth Circuit and Supreme Court, rulings that clearly favored the plaintiffs.

    Or, alternatively, that granting marriage equality and then revoking it violates due proces

    Why would that be so, unless refusing to grant marriage “equality” in the first place violates due process.

    As an aside, one of the reasons I find Perry hard to care about is, in the end, it’s entirely about the name.

    Which begs the question of why AFER spent so muich money on this case, instead of the anti-DOMA cases in Massachusetts or Oklahoma.

    Michael Ejercito (64388b)

  48. More from Worthing’s Twitter.

    @ AaronWorthing (wrt segregation)

    white men can’t. like in segregation, white people benefitted as much as black people suffered.

    It depends on if the white judge has a direct, immediate interest in the instant case. While whites benefit from segregation, in most cases it was a diffuse interest. Certainly a white judge hearing a school desegregation case who has no children attending, or planning to attend, the schools in question have any direct, immediate interest in the case.
    @ AaronWorthing

    And judges have done so in the past. check the briefs.

    The judge in the Alabama case I mentioned did just that. Unlike Walker, he took pains to disclose his children’s interests with respect to his case, and refused to recuse on that basis.
    @ xander76

    Should all the white justices ruling Baake have disclosed that they DIDN’T have white children who wanted to be lawyers?

    They would only be required to disclose if their children were students at the university in question or planned to attend the university in question.
    @ AaronWorthing

    but my more basic point is, why not get Judge Walker up there and ask him?

    Because then proponents’ lawyers get to ask Judge Walker why he did not disclose.

    Michael Ejercito (64388b)

  49. Michael Ejercito, I appreciate your thoughts on this. With regard to non-visible disclosure issues, would you agree with the line that Judge Ware took yesterday – would a female rape / molestation victim be obliged to disclose while ruling on such a case?

    How about the other line of reasoning that Boutrous used – Do we need to read the judge’s mind? What if Walker felt like getting married today, then didn’t want to tomorrow, then did again in a week or so? What if he didn’t recuse in between? How is being in a relationship with a guy for several years evidence that he had an interest in marriage? Gene Simmons and that chick from the skinimax movies have been together for longer than that, and seem to have no interest in marriage.

    carlitos (25ee92)

  50. Un-frickin’-believable:

    “Ware also heard arguments on whether he should prohibit Walker from using videotaped recordings of the trial in public speeches. Cooper said Walker’s post-retirement use of the recordings violated a U.S. Supreme Court ruling barring the trial from being broadcast beyond the federal courthouse in San Francisco.

    Ware said he would issue a written ruling at a later date but suggested he was disinclined to prevent his former colleague from making personal use of the videos.

    Ware said Walker had been given the videos as a parting gift during a “passing the gavel” ceremony.

    It was done under my auspices,” he said. So I want to disclose that in case you wish to make an argument that somehow having presided over that event … I should recuse myself.”

    Ware has also disclosed that he’s performed same-sex marriages. No bias there…

    Ellie in T.O. (864246)

  51. Pathetic. And people actually used to try to get black and female judges disqualified too. History will not be kind to this discrimination.

    stone (8f347e)

  52. So “stone”, do you think a sexual preference is the same as gender, or race?

    JD (318f81)

  53. Why not religion? I don’t think we should discriminate based on religion, gender, race or sexual orientation. And history won’t be kind to those who do.

    stone (0eb116)

  54. stone

    okay let’s talk religion.

    suppose san fran passes its circumcision ban. now let’s further suppose that it is challenged in federal court (as will inevitably occur) and is assigned to judge adir silverstein. And he strikes it down as unconstitutional. And then you learn after the trial that not only is Judge Silverstein a jew, but was his wife was five months pregnant with a son. do you think it would have been okay for silverstein to sit in on the case, without even acknowledging that he was jewish and whether he wanted his unborn son to be circumcized?

    Aaron Worthing (e7d72e)

  55. It is a little odd that in San Fran, of all places, you would be able to legally tattoo and pierce your hoo-ha but not to circumcise your kid.

    carlitos (25ee92)

  56. First of all, I should note that Ware will almost certainly not be the last word on the subject. At the very least, Reinhardt, Hawkins, and Smith will weigh in on the matter, and will be the last word unless the Supreme Court grants a petition of cert.

    This site is trying to transcribe it, live.

    Check out my comments here.

    With regard to non-visible disclosure issues, would you agree with the line that Judge Ware took yesterday – would a female rape / molestation victim be obliged to disclose while ruling on such a case?

    Yes.

    Standards for disclosure are much more liberal than standards for recusal.

    She has the option of having the court clerk reassign the case if she does not want to disclose.

    How is being in a relationship with a guy for several years evidence that he had an interest in marriage?

    Long-term relationshipos often result in marriages. To be sure, it is not iron-clad proof. However, it is a factor to be weighed. And I had mentioned other factors in this comment.

    It is backed up by the fact that Walker refused to disclose his relationship prior to the trial, and that he had made a series of irregular, unprecedented rulings overturned by emergency reversals by the Ninth Circuit and Supreme Court, rulings that clearly favored the plaintiffs.

    History will not be kind to this discrimination.

    Who is this Histoty person you keep mentioning, and why should I give a fuck about History’s opinion?

    Michael Ejercito (64388b)

  57. Ellie – well, the trial is taking place in San Francisco, where same sex marriage isn’t controversial. I wouldn’t be surprised if having performed such ceremonies were common enough for local judges that the judges who hadn’t would be (a) rare and (b) obviously biased on the other side.

    aphrael (9802d6)

  58. Aaron, it seems to me that your Judge Silverstein could properly sit on this case so long as he does not live in or around San Francisco. If he did live there then he probably should recuse himself even if he’s not married, if he regularly attends brisses in SF, just as a law banning weddings in some jurisdiction would affect anyone who is regularly invited to them.

    Milhouse (ea66e3)

  59. people actually used to try to get black and female judges disqualified too.

    If those judges had a direct interest in the case, then they should have been disqualified, and as far as I know they were.

    Milhouse (ea66e3)

  60. Aaron, it seems to me that your Judge Silverstein could properly sit on this case so long as he does not live in or around San Francisco. If he did live there then he probably should recuse himself even if he’s not married, if he regularly attends brisses in SF, just as a law banning weddings in some jurisdiction would affect anyone who is regularly invited to them.

    I want to understand your argument further.

    Suppose that the Ninth Circuit or Supreme Court vacates Judge Walker’s ruling on the basis that Walker was disqualified and remads the case to the District of Nevada. Would a judge there, who is in a long-term same-sex relationship and has plans to “marry” the partner, be qualified to sit on the case?

    Michael Ejercito (64388b)

  61. Would a judge there, who is in a long-term same-sex relationship and has plans to “marry” the partner, be qualified to sit on the case?

    It honestly seems like he would be qualified, right? The ruling doesn’t affect him. It’s not like his bias for a result is the same as a personal interest in a result.

    Then it’s just a matter of whether the Nevada homosexual can separate his opinion from the law, which is an everyday issue, rather than having such a severe personal stake in the result.

    Dustin (c16eca)

  62. remads the case to the District of Nevada. Would a judge there, who is in a long-term same-sex relationship and has plans to “marry” the partner, be qualified to sit on the case?

    Not if he’s ruling that a federal constitutional right exists, since that would compel Nevada as well. Nor if there’s evidence that he and his partner plan to travel to California to get married there. But assuming that Nevada already has same-sex marriage, or that California makes it available only to its own citizens, then certainly he could sit on the case; the precedents for that seem very clear.

    Milhouse (ea66e3)

  63. “do you think it would have been okay for silverstein to sit in on the case, without even acknowledging that he was jewish and whether he wanted his unborn son to be circumcized?”

    Your hypo misses one important fact: there’s no evidence that Walker wants to get married like your “silverstein” wants a circumcision. The only evidence you got is he’s gay or Jewish. And history won’t be kind to people who try to advance these biases.

    “Aaron, it seems to me that your Judge Silverstein could properly sit on this case so long as he does not live in or around San Francisco.”

    Not like he can’t get a bris out of town.

    “If those judges had a direct interest in the case, then they should have been disqualified, and as far as I know they were.

    Which judges are you talking about?

    stone (c10217)

  64. Carlitos it’s a little odd i agree with you.

    Ok fine it’s not odd.

    DohBiden (15aa57)

  65. “stone” is kind of slow.

    JD (aae929)

  66. Which judges are you talking about?

    The black and female judges you brought up, you moron.

    Milhouse (ea66e3)

  67. there’s no evidence that Walker wants to get married

    That’s what this hearing is supposed to determine, isn’t it?

    Milhouse (ea66e3)

  68. I thought you might have a followup after asking about race and gender. Are you not interested in going there anymore after I brought up religion?

    stone (c10217)

  69. No, race and gender are not the same. You comparable sexual preference to race and gender. When I pointed out that they are not the same, your response was BUNNIES

    JD (976b6a)

  70. ” That’s what this hearing is supposed to determine, isn’t it?”

    The people complaining don’t have any evidence.

    stone (5e6f6f)

  71. I thought you might have a followup after asking about race and gender. Are you not interested in going there anymore after I brought up religion?

    Comment by stone

    I don’t think people are interested because this was brought up a million times and answered a million times, and we already went over your religion aspect and you appear to have ignored that.

    Either engage in a discussion or expect people to ignore you.

    Dustin (c16eca)

  72. The people complaining don’t have any evidence.

    Seems to me the existence of a long-term relationship is prima facie evidence. And the concealment of that relationship is evidence of conscience of guilt.

    Milhouse (ea66e3)

  73. “No, race and gender are not the same. You comparable sexual preference to race and gender. When I pointed out that they are not the same, your response was BUNNIES”

    You didn’t really point it out, unless you consider yourself very passive aggressive. You asked about it. And I replied by grouping race, gender, sexual orientation and religion together as things we should not discriminate on. I think you just don’t like this, so you make silly reply, but I don’t see why. I don’t see why they have to be “the same” for us to not discriminate on the basis of these things.

    stone (5e6f6f)

  74. Stone ignores the discussion, skips to a new issue.

    Pathetic.

    Dustin (c16eca)

  75. Begging the question and BUNNIES appear to be SOP for you, “stone”.

    Look, if stone is not even going to pay attention to what he/she/it types, why should we? Point and laugh.

    JD (976b6a)

  76. “The black and female judges you brought up, you moron.”

    The ones I brought up most certainly did not disqualify themselves. Do you have a case in mind?

    stone (5e6f6f)

  77. Why don’t you give an example of a black or female judge who had a direct interest in the case, did not disqualify him/herself, and was not reversed?

    Milhouse (ea66e3)

  78. Maybe if I explained it this way: I don’t think religion is “the same” as gender or race (or even that gender is “the same” as race) but I still think we shouldn’t discriminate on the basis of those. Does that clear things up for you? Were you trying to go somewhere with this? You can still go there.

    stone (38222a)

  79. BUNNIES !!!!!!!!!!!!!

    JD (976b6a)

  80. The ones I brought up most certainly did not disqualify themselves. Do you have a case in mind?

    Comment by stone

    Do you have a case in mind? You claim to know some.

    Dustin (c16eca)

  81. “Why don’t you give an example of a black or female judge who had a direct interest in the case, did not disqualify him/herself, and was not reversed?”

    That’s not the example I used, so it’s not “The black and female judges you brought up,” you moron.

    stone (38222a)

  82. Oh, but what am I engaging this guy? He brought up an aspect, it was discussed very intelligently showing he’s wrong, and he completely ignored that discussion to make a different one.

    He’s not here to discuss, but to assign things to discuss and ignore. That’s trollish.

    Dustin (c16eca)

  83. “stone” – kindly list all the other names you have commented under here.

    JD (976b6a)

  84. That’s not the example I used, so it’s not “The black and female judges you brought up,” you moron.

    Comment by stone —

    No, you never used a specific example, and he’s not a moron. He’s running circles around you, and asked a polite question, so you called him a name.

    Which is a distraction. We should discuss this with Aphrael and Ejercito.

    Dustin (c16eca)

  85. Notice the BS construct that disagreement with “stone” means you support discrimination. And it wonders why it has not recd a warm reception.

    JD (976b6a)

  86. Blank v. Sullivan Cromwell. I don’t know why Milhouse leapt to me talking about the judges that “as far as I know they were.”

    stone (38222a)

  87. So what are you going to do now that race, gender, religion and even sexual orientation are not “the same” ? You can tell me it’s ok to discriminate on the basis of some of these. I’m just saying that history won’t be kind to those who do.

    stone (38222a)

  88. He’s running circles around you, and asked a polite question, so you called him a name.

    To be fair, I called him a moron first. Because he is one.

    Milhouse (ea66e3)

  89. How do you know what history is going to do?

    Milhouse (ea66e3)

  90. Readers here will not be kind to racist trolls.

    ropelight (50182a)

  91. well, let’s not call anyone names, however well deserved, okay?

    Aaron Worthing (e7d72e)

  92. To be fair, I called him a moron first. Because he is one.

    Comment by Milhouse —

    Oh. Well, he is a moron. But thanks for the correction. You’re a little more intense lately, but please carry on.

    Dustin (c16eca)

  93. and yes, liberals always believe that history goes in one direction only. the african americans in reconstruction and the gay people of weimar germany would have to disagree.

    Aaron Worthing (e7d72e)

  94. “He’s running circles around you, and asked a polite question, so you called him a name.”

    I actually took his quote verbatim and just moved the quotation marks. He seems to want to argue on that basis, he can take what he can dish out. Other than that I’d expect him to simply not fill out my argument and make suppositions about what I’m referring to.

    “How do you know what history is going to do?”

    I predict based on what it has done. Plus there’s a bit of hope in there too.

    stone (8c9005)

  95. What on earth has Blank v Sullivan Cromwell got to do with this? What interest did the judge have in the case?

    Milhouse (ea66e3)

  96. If they are not the same, and I very much agree with that assertion, then yu should quit comparing and conflating them as though they are. Now, what other names have you used?

    JD (976b6a)

  97. It honestly seems like he would be qualified, right? The ruling doesn’t affect him. It’s not like his bias for a result is the same as a personal interest in a result.

    Which goes into the heart of the relief that the plaintiffs sought.

    The plaintiffs had sought a statewide injunction. The problem was that they lacked standing to seek such an injunction, because they surely had no direct, immediate interest in whether Proposition 8 applied to other same-sex couples. And in fact, the injunction issued in this case was overbroad to to extent it enjoined enforcement of Proposition 8 with respect to persons other than the litigants. See Doran v. Salem Inn,
    Inc., 422 U.S. 922 at 931 (1975) (noting that “neither declaratory nor injunctive relief can directly interfere with enforcement of contested statutes or ordinances [ like Proposition 8] except with respect to the particular federal plaintiffs”) Monsanto Co. v.
    Geertson Seed Farms
    , 130 S. Ct. 2743 at 2760 (2010) (narrowing injunction in a facial challenge to federal agency action in part because the plaintiffs “do not represent a class, so they could not seek to enjoin such an order on the ground that it might cause harm to other parties”). Zepeda v. INS, 753 F.2d 719 at 727 (9th Cir. 1983); Nat’l Ctr. for Immigration
    Rights v. INS
    , 743 F.2d 1365 at 1371-1372 (9th Cir. 1984).Meinhold v. U.S. Department of Defense , 34 F.3d 1469 at 1480 (9th Cir. 1994)(overturning injunction except to the extent it provided plaintiff relief)

    Indeed, seven months after Judge Walker’s ruling, the Ninth Circuit limited the scope of an injunction pursuant to a ruling holding federal regulations facially unconstitutional. See Los Angeles Haven Hospice, Inc. v. Sebelius,
    2011 WL 873303, at *15 (9th Cir. Mar. 15, 2011). This will of course be binding on all district courts as well as Ninth Circuit panels, including the panel that will decide the Proposition 8 appeal.

    Had plaintiffs only sought relief for which they had standing to seek, per Doran, Zepeda, Nat’l Ctr. for Immigration
    Rights
    , and Meinhold, then the judgment in the case would not have affected any direct, immediate interests Walker might have in “marrying” his partner, and there would be no basis for a 455 (b) disqualification.

    Not if he’s ruling that a federal constitutional right exists, since that would compel Nevada as well.

    That would be incorrect. The defendants in this case are California state officials, and the judge would exceed his jurisdiction by enjoining Clark County’s or Washoe County’s officials into issuing marriage licenses to same-sex couples.

    Nor if there’s evidence that he and his partner plan to travel to California to get married there

    .
    Which is true, but the refusal to disclose a long-term same-sex relationship would not support that idea (unlike supporting the idea that the judge might want to “marry” in his home state.)

    That’s what this hearing is supposed to determine, isn’t it?

    I wonder why the plaintiffs’ attorneys did not call Walker to the stand and ask him point blank if he had an interest in “marrying” his partner at any time during the case. Surely a denial would settle the 455 (b) issue.

    Michael Ejercito (64388b)

  98. I wonder why the plaintiffs’ attorneys did not call Walker to the stand and ask him point blank if he had an interest in “marrying” his partner at any time during the case.

    Lack of stones?

    carlitos (25ee92)

  99. Lack of stones?

    Walker would have had to explain why he refused to disclose, and plaintiffs were afraid of the answer.

    Michael Ejercito (64388b)

  100. “What on earth has Blank v Sullivan Cromwell got to do with this? ”

    It’s the type of case I was talking about. This is a surprise to you because you leapt to talking about something else.

    “If they are not the same, and I very much agree with that assertion, then yu should quit comparing and conflating them as though they are.”

    We can certainly compare things that are not the same. And we don’t have to conflate things that are not the same in order to decide not to discriminate on the basis of those things.

    stone (411830)

  101. michael

    well, and honestly, what do you expect? for judge walker to admit that he violated the law?

    its worth asking, but i would give no credit to a denial.

    Aaron Worthing (e7d72e)

  102. It’s the type of case I was talking about.

    The judge found the asserted grounds for recusal (that she was a woman) insufficient.

    By contrast, Justice Thomas recused himself from United States v. Virginia, 518 U.S. 515 (1996), because his son attended VMI.

    I ask again.

    If a judge hears a fraud suit against a corporation, and his son works there, under what circumstances would he be required to recuse himself from the case? Would it be a breach of judicial ethics if the judge knew about his son’s employment with the firm and refused to disclose it?

    If a judge hears a sex discrimination suit against a school alleging that the school’s music program discriminates against girls, and her daughter attends the school, under what circumstances would she be required to recuse herself? Would it be a breach of judicial ethics if she refused to disclose her daughter’s attendance at the school?

    What should be the remedy if the judge refuses to disclose information he knew to be important until months after the trial court’s decision?

    Michael Ejercito (64388b)

  103. if the judge refuses to disclose information

    As ever, I am not a lawyer. But … what if the judge had no intentions of getting married? Lots of people of gay and straight persuasions have long-term relationships without marriage. Did he “refuse to disclose” something?

    What if he changes his mind now and does want to marry his partner? Is he then disqualified after the fact? Would this be grounds for re-trial?

    carlitos (25ee92)

  104. As ever, I am not a lawyer. But … what if the judge had no intentions of getting married? Lots of people of gay and straight persuasions have long-term relationships without marriage. Did he “refuse to disclose” something?

    Rules for disclosure are liberal, and judges are required to disclose any relevant information, as the judge in the Alabama case had done. 574 F. Supp. 762 at 764 n.1. (N.D. Ala. 1983)

    Section 455 (e) requires a full disclosure.

    Michael Ejercito (64388b)

  105. Sadly, there’s apparently a lawlessness these days.

    Dustin (c16eca)

  106. Judge Ware, who presided over the hearing, officiated over some same-sex marriages in California (when it was legal).

    Who will be the first to scream bias?

    Kman (0ca272)

  107. Ware didn’t agree regarding 455 it seems:

    . Contrary to the intent of Section 455, which was designed to preserve judicial integrity through practices of transparency, it is clear that fostering the practice of commencing a judicial proceeding with an extensive exploration into the history and psyche of the presiding judge would produce the spurious appearance that irrelevant personal information could impact the judge’s decision-making, which would be harmful to the integrity of the courts. In fact, courts that have considered the question have taken the opposite view. See, e.g., In re McCarthey, 368 F.3d 1266, 1269 (10th Cir. 2004) (declining to “craft a procedure that essentially will require district judges to submit to discovery . . . when a party lacks an adequate factual basis for disqualification on non-financial matters”).

    The Motion fails to cite any evidence that Judge Walker would be incapable of being impartial, but to presume that Judge Walker was incapable of being impartial, without concrete evidence to support that presumption, is inconsistent with what is required under a reasonableness standard.

    He also mentioned potential disclosure by a hypothetical judge who suffered childhood sexual abuse, a line of reasoning that he went into with Boutrous yesterday.

    carlitos (25ee92)

  108. Who will be the first to scream bias?

    I believe it’s already happened in the comments right here on this topic. By that logic, any judge who’s ever presided over a wedding can’t hear a divorce case or decide marriage law I guess.

    carlitos (25ee92)

  109. He also mentioned potential disclosure by a hypothetical judge who suffered childhood sexual abuse, a line of reasoning that he went into with Boutrous yesterday

    Yes, I read that. It’s basically saying that if the Prop 8 proponents won today, it would require judges to disclose all kinds of personal information (child abuse, rapes, etc.) before presiding in certain cases.

    Kman (0ca272)

  110. kman

    just because you are an idiot doesn’t mean we are.

    now if ware himself wanted to marry a dude…

    Aaron Worthing (e7d72e)

  111. The imperial judiciary is not a good thing. It is the realm of the Left, which is why they try to force by Judge what they cannot get by the legislature or icky voters.

    I never want to hear another word about Justice Thomas, or the judges against the dilatory and dishonest EPA cases.

    JD (306f5d)

  112. I never want to hear another word about Justice Thomas, or the judges against the dilatory and dishonest EPA cases.

    Comment by JD

    No kidding. Sheesh. But of course, most of the left is sure that Thomas’s wife’s Tea Party views are a big deal.

    Strange how they can’t stay consistent on the topic of activism.

    Dustin (c16eca)

  113. It’s the type of case I was talking about.

    In which case it’s irrelevant to this case. Had the judge’s daughter intended to apply for a job at the defendant, do you imagine she could have got away with not recusing herself?

    Milhouse (ea66e3)

  114. Ware said Walker had been given the videos as a parting gift during a “passing the gavel” ceremony.

    WTF? Who made that decision, and where in the world did they get the right to do so? The tapes were not their property to dispose of, and they should face criminal charges. Ware doesn’t say that it was his decision, just that he presided over the retirement ceremony; but did he know about it and approve, or did he just find out about it now?

    Milhouse (ea66e3)

  115. Kman

    btw, congradulations.

    Your liberal views which would allow a person to literally order the courts to issue a marriage license to himself has succeeded… in the Ninth Circuit.

    I bet you do equally well in the fourth where you work. :-)

    Aaron Worthing (e7d72e)

  116. I never want to hear another word about Justice Thomas

    I don’t know if Justice Thomas’s wife’s dealings are enough to require Thomas’s recusal on any particular case, but the issues are different than the issue in the Walker/Prop 8 matter.

    To say “if Walker isn’t kicked off, then Thomas shouldn’t be” shows an intentional lack of understanding about judicial ethics and impartiality. Worse than that, it’s injecting partisan politics into the judiciary. It’s an attitude that, in my view, creates the problem in the first place.

    Kman (0ca272)

  117. Who will be the first to scream bias?

    I don’t know whether Ware was biased, or just outright criminal.

    Milhouse (ea66e3)

  118. Your liberal views which would allow a person to literally order the courts to issue a marriage license to himself has succeeded… in the Ninth Circuit.

    Except there’s no evidence that Walker (or any gay judge) is seeking a marriage license. Like the attorneys appearing before Ware, what you state in order to support your proposition is, at best, speculative. Which is a nice way of saying, your evidence is non-existent and unreasonable.

    Legal tip: Imagining something could happen is not evidence that something DID or WILL happen. Finders of fact can tell the difference.

    Kman (0ca272)

  119. How is leftist partisan hackery somehow my responsibility, kmart? Nevermind. FU. You and your leftist clown posse like weiner and the rest have been trying to run conservatives off cases by smear an innuendo. See weiner and Thomas. Yet you remain silent or defend Walker and Kagan and activist judges who hate the voters and submit their desires over the expressed will of the populace.

    JD (29e1cd)

  120. kman

    yes, we don’t know what his intent is… because he never disclosed it as he should have.

    seriously, do you think anyone doesn’t see a problem here, why he got overruled twice before the case even started?

    his entire performance was a disgrace to the judiciary and should have been rebuked. Or are we supposed to believe that the first federal judge in the nation to find that there is a constitutional right to gay marriage–undiscovered for the last 200+ years–was discovered by a gay man in a long term relationship and all of that is a coincidence.

    Is the reasonable person a complete idiot in your mind?

    Aaron Worthing (e7d72e)

  121. The idea that I am the one injecting politics into the judiciary is beyond laughable, and snort inducing.

    JD (306f5d)

  122. Ware doesn’t say that it was his decision, just that he presided over the retirement ceremony; but did he know about it and approve, or did he just find out about it now?

    Comment by Milhouse

    He threw a party for the guy?

    You get the government you deserve, California.

    Dustin (c16eca)

  123. Except there’s no evidence that Walker (or any gay judge) is seeking a marriage license. Like the attorneys appearing before Ware, what you state in order to support your proposition is, at best, speculative. Which is a nice way of saying, your evidence is non-existent and unreasonable.

    The evidence is based upon his failure to disclose, as well as his irregular procedural rulings regarding discovery, broadcast, scope of injunctive relief, and stay of injunction.

    Indeed, had he disclosed his relationship and disavowed any interest in marriage, that would, barring compelling evidence to the contrary, obviate a recusal under 455 (b)

    Michael Ejercito (64388b)

  124. “Lawyers for two gay couples called the effort to disqualify Judge Walker frivolous, offensive and unfortunate.”

    As for the rest of their arguments…

    stone (81f6ab)

  125. As for the rest of their arguments…

    Except Ware, while rejecting the motion, did not treat it as frivilous. Indeed, he explained that the motion was timely, and properly understood the reason for the motion (the same-sex relationship, not the sexual orientation).

    For an example of a frivilous motion, see their motion to vacate the stay on the injunction. The Ninth Circuit denied the motion with little comment.

    Michael Ejercito (64388b)

  126. He threw a party for the guy?

    No, he didn’t throw the party, he just presided over it. Presumably the judicial district threw it. I believe retirement parties are usual, in most workplaces. I see no reason why a court should be different, or why a fellow judge should not “chair” the event. Nor even why the retiring judge shouldn’t get a reasonable present, at taxpayer expense. But nobody had the right to give away confidential evidence that was recorded over the parties’ protests, on the explicit promise that it would never be shown to anyone outside the case!

    Milhouse (ea66e3)


Powered by WordPress.

Page loaded in: 0.4315 secs.