Patterico's Pontifications

6/14/2011

Breaking: Motion to Vacate Proposition 8 Verdict Denied

Filed under: General — Aaron Worthing @ 1:59 pm



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

I haven’t read through it, but you guys already know how I felt it should turn out.  Expect analysis to come but not for a few hours.  For now, you can read it, here.

So, to recap, a Judge in a ten year committed relationship issues an order that makes it legal for him to marry his lover and a reasonable person would not question the impartiality of that judge, apparently, according to Judge Ware.

Do you question his impartiality?  Are you reasonable?

[Posted and authored by Aaron Worthing.]

44 Responses to “Breaking: Motion to Vacate Proposition 8 Verdict Denied”

  1. Just what you’d expect from a judge who LIED to the FBI in a background check. A sort of “Harvey” story. Per the indispensable Ed Whelan at NRO:

    http://www.nationalreview.com/bench-memos/269563/forthcoming-denial-motion-vacate-anti-prop-8-judgment-ed-whelan

    Dave in OC (e6990e)

  2. Neither Walker nor Ware was impartial. In both cases this was blatant judicial activism, and it needs to be fought to the highest level.

    Ellie in T.O. (fffcb0)

  3. Dave

    well, i think ware’s bad past has nothing to do with it. i think judges are soft on other judges.

    Aaron Worthing (e7d72e)

  4. the vacate is all you ever wanted

    the vacate it didn’t go your way

    the vacate was how the court could atone

    happyfeet (a55ba0)

  5. feets!

    carlitos (25ee92)

  6. a reasonable person would not question the impartiality of that judge

    The problem you have is that you start with the assumption that judges, even ones with a speculative stake in the outcome, can’t be impartial:

    The Court finds that disqualification under Section 455(a) on the basis of this fact fails, because it depends upon the assumption that a judge who is in a relationship has an interest in getting married which is so powerful that it would render that judge incapable of performing his duties.

    Under Ninth Circuit law, however, this assumption is unreasonable. A well-informed, thoughtful observer would recognize that the mere fact that a judge is in a relationship with another person–whether of the same or the opposite sex–does not ipso facto imply that the judge must be so interested in marrying that person that he would be unable to exhibit the impartiality which, it is presumed, all federal judges maintain.

    Emphasis mine.

    Kman (0ca272)

  7. Not really surprising that the judicial tunnel that ends up with the most decisions being turned around by the light at the end (the SC) would bring out another one.

    My only concern is whether Kennedy’s need to be seen as the swing vote will cause him to ignore the misconduct here and vote with the liberal wing because it’s the right thing to do or some such nonsense.

    deepelemblue (ea26b9)

  8. Aaron,
    That should be noted without saying. Didn’t a chief of staff to a former vice-president get found guilty of perjury, lying to a federal agent, and obstruction for a lie no one could define? Let’s see, his nickname was something like wagon, skates or??? This JO tells this tall tale to the FBI and is still on the bench? No liberal bias here, no sir! It’s almost enough to make you think the courts are hopelessly corrupt…

    Dave in OC (e6990e)

  9. Dave, that’s outrageous; he should have been impeached for that. Having read that, no decent person can have any respect for any decision Ware has ever made, on any case whatsoever. His existence on the bench pollutes it.

    Milhouse (ea66e3)

  10. Judge Ware gets the standard wrong. Here, I think, is a critical part of his opinion, at the bottom of p.15:

    The Court finds that disqualification under Section 455(a) on the basis of this fact fails, because it depends upon the assumption that a judge who is in a relationship has an interest in getting married which is so powerful that it would render that judge incapable of performing his duties. Under Ninth Circuit law, however, this assumption is unreasonable. A well-informed, thoughtful observer would recognize that the mere fact that a judge is in a relationship with another person–whether of the same or the opposite sex–does not ipso facto imply that the judge must be so interested in marrying that person that he would be unable to exhibit the impartiality which, it is presumed, all federal judges maintain. … To assume otherwise is to engage in speculation about a judge’s motives and desires on the basis of an unsubstantiated
    suspicion that the judge is personally biased or prejudiced.

    Notice how Ware jumps from saying (paraphrasing here), Just because they’re an item, doesn’t mean they’re necessarily getting married, to saying that it’s “mere speculation” that a couple who’ve been together for 10 years just might want to tie the knot.

    If Judge Ware cannot understand that it is at least “reasonable” to “question” such a person’s objectivity, even if don’t know for sure, then I don’t know where to begin. But he seems instead to be mixing up the standards by suggesting that no guessing of ANY kind is allowed, even reasonable guessing, because it’s “speculation.”

    Mitch (890cbf)

  11. Not really surprising that the judicial tunnel that ends up with the most decisions being turned around by the light at the end (the SC) would bring out another one.

    It was the district court that decided this, not the Ninth Circuit, which will probably decide an appeal on this.

    My only concern is whether Kennedy’s need to be seen as the swing vote will cause him to ignore the misconduct here and vote with the liberal wing because it’s the right thing to do or some such nonsense.

    Does Kennedy have a reputation for ignoring misconduct?

    In any event, the case that currently has the shortest path to a petition for cert is not this case, but the Texas same-sex “divorce” case.

    Michael Ejercito (64388b)

  12. Didn’t a chief of staff to a former vice-president get found guilty of perjury, lying to a federal agent, and obstruction for a lie no one could define?

    Indeed, for a lie nobody could prove he told, since the FBI doesn’t record interviews. The jury chose to believe the agent’s reconstructed notes about what was said.

    Milhouse (ea66e3)

  13. Martha Stewart went to prison for the same thing, didn’t she?

    Milhouse (ea66e3)

  14. I don’t think being in a gay committed relationship makes it so he is too impartial to judge properly.

    MayBee (081489)

  15. I don’t think being in a gay committed relationship makes it so he is too impartial to judge properly.

    I’m glad we agree. Now let’s focus on one of the arguments that were actually, y’know, made.

    Mitch (890cbf)

  16. It is almost as if the federal bench wants to create a weak, dubious basis for the whole decision.

    SPQR (26be8b)

  17. I don’t think being in a gay committed relationship makes it so he is too impartial to judge properly.

    Not by itself, but refusing to disclose, coupled with a series of irregular rulings, demonstrates his partiality.

    Michael Ejercito (64388b)

  18. The fix was in on this one from the beginning.

    The judicial system is completely broken in California, both state and federal benches.

    CatoRenasci (9b70fa)

  19. Actually the agent, Eckenrode, lost the notes to the interview.

    ian cormac (72470d)

  20. The judicial system is completely broken in California, both state and federal benches.

    Why is the federal bench broken?

    Michael Ejercito (64388b)

  21. I’m glad we agree. Now let’s focus on one of the arguments that were actually, y’know, made.

    Mitch, I was responding to what Aaron wrote here:

    So, to recap, a Judge in a ten year committed relationship issues an order that makes it legal for him to marry his lover and a reasonable person would not question the impartiality of that judge, apparently, according to Judge Ware.

    Do you question his impartiality?

    My answer was no.

    MayBee (081489)

  22. Thank goodness. Now Sumi needs to be impeached.

    But really, I don’t understand why Walker played along with this charade for the past two months; if I were in his place I would have told Sumi that she was ultra vires, and she could shove her decisions and orders up whichever of her nether orifices she pleased. I wouldn’t even have dignified her pretend “hearings” by being represented at them.

    Milhouse (ea66e3)

  23. From the ruling.

    Such a precedent would be detrimental to the integrity of the judiciary, because it would promote, incorrectly, disclosure by judges of highly personal information (e.g., information about a judge’s
    history of being sexually abused as a child), however irrelevant or time-consuming.

    (Emphasis added)

    The problem is that the information was relevant- unlike, say, any previous relationships Judge Walker might have had, which not even proponents argued that he was required to disclose. A reasonable person could distinguish between Walker’s current and past relationships, such that the former is relevant to this issue while the latter is not.

    To refer to an example that I had used in discussing this subject, if a judge hears a lawsuit alleging that a school’s music program impermissibly discriminates against girls, it is irrelevant if her daughter once attended the school but no longer does. It is relevant (at least for disclosure requirements) if her daughter currently attends the school.

    Michael Ejercito (64388b)

  24. It is relevant (at least for disclosure requirements) if her daughter currently attends the school.

    Or if she is seriously considering sending her daughter there.

    Milhouse (ea66e3)

  25. OTOH, the WI Supremes vacated Sumi’s stay on Walker’s collective bargaining law.

    Kevin M (73dcc9)

  26. oops. #21 beat me to it.

    Kevin M (73dcc9)

  27. Here, here!- The people of the great state of California(land of milk and honey), have spoken. No gay marriages in the golden state! Marriage is the state in which man and woman become formally united, for the purpose of living together and to procreate.
    So let it be written, so let it be done….

    mines of golconda (70f08e)

  28. if I were in his place I would have told Sumi that she was ultra vires, and she could shove her decisions and orders up whichever of her nether orifices she pleased. I wouldn’t even have dignified her pretend “hearings” by being represented at them.

    Comment by Milhouse

    That sounds awesome, and I’m not being sarcastic.

    But Walker is a politician in a blue state, and this issue played well for him. He handled it with more respect that I would be able to muster for Sumi or her trumped up process, but now, he looks like he’s trying to do the people’s business against a corrupt democrat machine. I mean, he already did, but moreso now.

    Dustin (c16eca)

  29. I blame the KochBrothers.

    JD (318f81)

  30. Plus, I’m delighted at how this has established limitations on the next would-be Sumi. Not that Milhouse’s suggestion couldn’t have led to such a result… I honestly don’t know.

    But there was a pretty close election involving the Supreme Court, so I think playing carefully with this was wise and don’t fault Walker one bit.

    Of course, it’s never over until the democrats win.

    Dustin (c16eca)

  31. Dustin – it was a 4-3 decision the 3 liberal justices ignored the law, and were only 1 vote away from allowing this partisan hack of a judge to dictate to the legislature.

    JD (318f81)

  32. JD, all the justices concurred in the judgement. The three liberals dissented in that there was a “ruxh to judgement” and that the court’s normal procedures were violated.

    In short, they agreed with the decision but thought that a period of navel-gazing was needed.

    Kevin M (298030)

  33. 😆

    DohBiden (15aa57)

  34. only 1 vote away from allowing this partisan hack of a judge to dictate to the legislature.

    Comment by JD — 6/14/2011 @ 5:04 pm

    It’s scary. That court breaks 4-3 a lot, and there is a lot of hostility to the 4 conservatives. It’s ridiculously political on the side of the chief justice.

    Dustin (c16eca)

  35. Colonel has bad case
    love that dare not speak its name
    in love with my car

    ColonelHaiku (b70d54)

  36. This is a sideshow, with due respect, Aaron.

    The “trial” was a circus. No material facts were in genuine issue. The resolution of the case can and will be made at the appellate level based on undisputed and indisputable facts; the fight on appeal should be, and will be, how the law applies to those facts.

    Nothing this judge did or didn’t do will end up mattering. It’s a waste of everyone’s time and emotional energy to pay attention to it. The judgment of the district court is either going to be affirmed or reversed — I continue to believe the latter is most likely, but not before the SCOTUS gets it — but nothing this trial judge did or didn’t do will have any bearing on that outcome.

    Beldar (a4d09e)

  37. In the order denying the motion, the district court had cited Cheney v. United States District Court for the District of Columbia, 542 U.S. 367 (2004) in support of the holding that “[r]easonableness is not determined on the basis of what a particular group of individuals may think, nor even on the basis of what a majority of individuals in a group believe to be the case”.

    In Cheney , the Sierra Club had filed a motion to recuse Justice Antonin Scalia from the case. 541 U.S. 913 at 923-29 (J. Scalia) The Sierra Club filed the motion on the grounds that Scalia went on a hunting trip with Vice President Dick Cheney, one of the litigants. The Sierra Club supported its motion on the basis that “8 of the 10 newspapers with the largest circulation in the United States, 14 of the largest 20, and 20 of the 30 largest have called on Justice Scalia to step aside . . . . Of equal import, there is no counterbalance or controversy: not a single newspaper has argued against recusal. Because the American public, as reflected in the nation’s newspaper editorials, has unanimously concluded that there is an appearance of favoritism, any objective observer would be compelled to conclude that Justice Scalia’s impartiality has been questioned. ”

    How many of these same newspapers called for Judge Walker’s recusal, or at least admitted they were wrong about claiming that Justice Scalia must recuse himself? After all, if merely going on a hunting trip with someone who was a litigant in his official , not personal, capacity, is sufficient to cause a reasonable person to question Justice Scalia’s impartiality, and thus require recusal, how much more sufficient is it for a same-sex relationship to cause a reasonable person to question Judge Walker’s impartiality, and thus require recusal?

    Michael Ejercito (64388b)

  38. Ping: California Prop 8 and Beldar’s tale of a trial judge who based his ruling on a coin flip.

    Beldar (a4d09e)

  39. Sigh.

    DohBiden (15aa57)

  40. Sigh.

    DohBiden (15aa57)

  41. Are you ALL attorneys?

    Jenny (61a90f)

  42. Are you ALL attorneys?

    Do you have any other questions?

    Michael Ejercito (64388b)

  43. Does your mom know your using her computer?

    DohBiden (15aa57)


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