Ethics & Public Policy Center

The Most Egregious Performance Ever by a Federal District Judge

Published in National Review Online on August 13, 2010



Consider the totality of Judge Walker’s conduct in the anti-Prop 8 case:

Let’s start with Walker’s initial case-management conference when he determined, to the surprise even of plaintiffs’ lawyer Ted Olson, that the case couldn’t be resolved, one way or the other (as other courts have done in similar cases), as a matter of law but would instead require extensive discovery into supposed factual issues.

Let’s continue with 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 the incredibly intrusive discovery, grossly underprotective of First Amendment associational rights, that Walker authorized into the internal campaign communications of the Prop 8 sponsors. That ruling was overturned, in part, by an extraordinary writ of mandamus issued by a Ninth Circuit panel consisting entirely of Clinton appointees. But the portion that survived enabled plaintiffs to conduct scorched-earth discovery that leveraged the massive resource advantage provided by their lavish Hollywood backers. And the sweeping judicial invasion of the core political speech rights and associational rights of Prop 8 supporters had the added benefit, from Walker’s perspective, of intimidating opponents of same-sex marriage from ever daring to exercise those rights again.

Then there’s 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:

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.

Then Walker presided over a parade of anti-Prop 8 witnesses at trial who gave lengthy testimony, only a tiny fraction of which was relevant to any sound understanding of the issues in dispute — and all of that could have been in the form of expert or documentary submissions. And — surprise, surprise — every single one of plaintiffs’ “expert” witnesses is an activist for same-sex marriage whose “expert” testimony was just a repackaging of their political advocacy.

Oh, and let’s not forget that all along Walker apparently failed to disclose to the parties basic personal facts that would have enabled them to assess whether his impartiality in the matter might reasonably be questioned.

Then there’s Walker’s crazed — and, as one same-sex marriage advocate put it, “radical” — ruling on final judgment. That ruling ignored binding Supreme Court and Ninth Circuit precedent, concocted absurd factual findings, and grossly misstated the state of the record on key points.

And, just yesterday, Walker’s refusal to stay his judgment pending appeal, the latest step in his gamesmanship to try to deprive Prop 8 proponents of their appeal rights and to avoid effective appellate review of his shenanigans.

Walker’s course of conduct would be sufficient cause for national scandal in any case. That it comes in a case that aims to radically remake the central social institution of American society makes it utterly intolerable.

I can’t imagine that any federal district judge has ever committed more egregious and momentous acts of malfeasance in a case.

Ed Whelan is president of the Ethics and Public Policy Center and is a regular contributor to NRO’s “Bench Memos” blog.

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