Staging a Show Trial on Same-Sex Marriage

Published January 4, 2010

National Review Online

Midday on December 31, a curious document suddenly appeared on the official website of the U.S. District Court for the Northern District of California. Entitled “Notice Concerning Proposed Revision of Civil Local Rule 77-3,” the document states that the court “has approved for public comment” a revision of this rule. The document calls for public comments to be submitted “as soon as convenient and, in any event, no later than January 8, 2010” — a mere five business days from the publication of the notice. The proposed revision would alter the court's longstanding prohibition on “public broadcasting or televising, or recording for these purposes in the courtroom or its environs, in connection with any judicial proceeding.” The revised rule would permit the televising of proceedings as part of a “pilot or other project authorized by the Judicial Council of the Ninth Circuit.”

If all this seems arcane and mundane, don't be fooled. On Monday, January 11, Judge Vaughn Walker, the chief judge of the Northern District of California, is set to commence trial in San Francisco in Perry v. Schwarzenegger. That's the strange-bedfellows lawsuit in which lawyers Theodore Olson and David Boies — adversaries in Bush v. Gore –– have joined forces to contend that California's Proposition 8, the voter initiative that restored the state's traditional definition of marriage as between one man and one woman, violates the federal Constitution.

Walker's New Year's Eve surprise is a critical step in his evident ongoing effort to turn the lawsuit into a high-profile, culture-transforming, history-making, Scopes-style show trial of Proposition 8's sponsors. Specifically, Walker is rushing to override longstanding prohibitions on televised coverage of federal trials so that he can authorize televised coverage of the Proposition 8 trial. Televised coverage would generate much greater publicity for ringmaster Walker's circus. And, whether Walker desires the effect or is somehow blind to it, televised coverage would surely also heighten the prospect that witnesses and attorneys supporting Proposition 8 would face harassment, intimidation, and abuse.

In his eagerness to stack the deck against Proposition 8 and its defenders, Walker has resorted to procedural shenanigans and outright illegality.

The longstanding policy of the Judicial Conference of the United States — the body charged with ensuring fair and effective administration of the federal courts — opposes all broadcasting of civil and criminal cases in federal district courts. As the chairman of a Judicial Conference committee explained in congressional testimony in 2007, the Judicial Conference's policy reflects the concern that televised proceedings could “undermine the fundamental rights of citizens to a fair trial.” Televising court proceedings, he said, “could jeopardize…the safety of trial participants” and “produce intimidating effects on litigants, witnesses, and jurors.”

Consistent with the Judicial Conference's policy, the Northern District of California's Local Rule 77-3 provides that “the taking of photographs, public broadcasting or televising, or recording for these purposes in the courtroom or its environs, in connection with any judicial proceeding, is prohibited.” Of course, this rule like any other may be amended. But federal law specifically provides that any rule prescribed by a district court — which clearly includes any amendments to an existing rule (see also Fed. R. Civ. P. 83(a)(1) and Local Rule 83-3(a)) — “shall be prescribed only after giving appropriate public notice and an opportunity for comment” (28 U.S.C. § 2071(b)). In addition, Local Rule 83-1 requires that “any proposed substantive modification or amendment of these local rules must be submitted to a Local Rules Advisory Committee for its review.”

In plain violation of these legal provisions, Walker, without prior notice, purported to amend Local Rule 77-3 on December 22, to make the revision that became the subject of the December 31 notice. (The court's December 23 notice announcing the change has now been removed from the court's website.) Walker's obvious purpose in doing so was to enable him to authorize televised coverage of the Proposition 8 case.

Counsel for Proposition 8's sponsors learned of the purported amendment only after they had submitted a letter to Walker on December 28 that reiterated their objections to televising the courtroom proceedings and explained that televised proceedings would violate the court's rules. In a follow-up letter on December 29, they explained that the purported amendment was unlawful.

Evidently realizing that his December 22 action was in fact unlawful, Walker directed that the December 31 notice inviting public comment be issued. But it's clearly because of the purpose of the proposed revision — to enable televised coverage of the Proposition 8 case — that the period for public comments, which typically would run for 30 days or more, is so ridiculously short: It ends the Friday before the trial begins, so Walker will have time to rubber-stamp the revised rule. Walker might be able to claim that he will have technically complied with the governing federal statute, but his notice, issued on New Year's Eve and affording only five business days for comment, could hardly be better calculated to evade the purpose of the statute.

These are kangaroo-court procedures. As counsel for the Proposition 8 sponsors spell out in their letters opposing televised proceedings, the fair-trial concerns that animate the Judicial Conference's opposition to televised proceedings apply with special force in this case. Given all the harassment of Proposition 8 supporters that has already occurred, “it is not surprising,” as counsel's December 28 letter puts it, that “potential witnesses have already expressed to [counsel] their great distress at the prospect of having their testimony televised” and that “some potential witnesses have indicated that they will not be willing to testify at all if the trial is broadcast or webcast beyond the courthouse.” The likelihood of intensified harassment of counsel is also obvious.

Walker purports to be availing himself of a Ninth Circuit pilot program for televising district-court proceedings. This “pilot program” was, wonder of wonders, announced out of nowhere on December 17 by Ninth Circuit chief judge Alex Kozinski — who is no stranger to hijinks to advance the cause of same-sex marriage. Any intelligent and fair-minded judge would recognize that the obvious candidates for a pilot program would be low-profile cases that present no apparent risk of intimidation or abuse of trial participants and in which all parties consent to televised coverage. Only an idiot or a hardened ideological advocate for same-sex marriage — and Walker is no idiot — would imagine that the Proposition 8 case is a good candidate for the program.

A coalition of major media companies has asked Walker to have the Proposition 8 trial televised because “televising this modern-day Scopes trial would present viewers with a national civics lesson on a hotly contested issue that crosses social, political, educational, and religious boundaries.” But the role of the
courts is not to “present viewers with a national civics lesson.” It's to decide cases fairly. In some cases, that goal might not be jeopardized by televising the proceedings. But in other cases it will be.

The very fact that these media companies are intent on portraying the Proposition 8 case as a “modern-day Scopes trial” reinforces the ample evidence that this trial should not be televised. If Judge Walker persists in failing to recognize that elementary fact, the national civics lesson that he will be providing is yet another reminder that too many of our federal judges willfully abuse their authority in order to advance their own political agendas.

Edward Whelan is president of the Ethics and Public Policy Center and is a regular contributor to NRO's “Bench Memos” blog, where he will be providing continuing coverage of the Proposition 8 case.

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