Patterico: Judge who struck down Prop 8 advised to stay away from Supreme Court arguments

Next week’s Supreme Court arguments on gay marriage are certain to be a media circus, and blogger Patterico has uncovered emails that give a peek behind the curtain at the setting of the stage. Of note: Ted Olson, lead co-counsel of the American Foundation for Equal Rights, and his law partner recommended that retired federal judge Vaughn R. Walker, who struck down California’s Proposition 8, stay away from the proceedings lest he be an “unwanted distraction.”

Patterico notes in his post that while he is a supporter of gay marriage, the emails, which make note of Walker’s “personal situation, even though now irrelevant” (he’s gay) and high profile, suggest “an emotional investment in the outcome of the case” from a judge who many thought should recuse himself from the Proposition 8 case.

So, what do Patterico’s readers think?

  • http://twitter.com/die_mich_zwei Spatial Awareness

    Rogue judges, politicians, journalists, police and criminals…….
    Welcome to the Third World.

    • Clayton Grant

      The United States of Absurdistan.

  • Scott Carroll

    The profession of adjudication is becoming as much of a joke as the profession of journalism. All the pillars of civilization, our societal foundations are being eaten away by termites like this judge. I support gay marriage but the will of the people should not be invalidated by judicial fiat, and clearly biased judicial fiat at that.

    Unless and until the professions that ostensibly safeguard our liberty from governmental overreach (politicians, judges, journalists) start observing their own standards of conduct (protecting the Constitution, recusing themselves when interests conflict, holding those in power accountable), then we will continue to circle the drain of mediocrity.

    I thought we were a constitutionally federated republic, did we all get together and decide that we would, instead, be ruled by a black robed monarchy? I must’ve slept in that day and missed the meeting.

    • Krazy Kent

      I’m on the Twitchy app, so I can’t give this the Disqus “thumbs up”, but consider it given. I couldn’t have said it any better. That is the poster description for the phrase “slippery slope”….and the more we slide, the harder it will be to recover.

    • CitizenGeek

      If you think the judiciary is a “black robed monarchy”, then I’m sure you opposed efforts by conservatives to get the Supreme Court to overturn a legally enacted law, Obamacare, right?

      • http://twitter.com/thetugboatphil TugboatPhil

        David, if you truly believe that the federal government has the authority to mandate a citizen to buy a product from a PRIVATE company, then you will not complain when the federal government orders you to buy stock in Goldman Sachs, or else go to prison.

        A “legally” enacted law does not make it constitutional. Neither does a Supreme Court decision (Dred Scott).

        • CitizenGeek

          The point I was making was that you, and many conservatives, have decided that same-sex marriage bans should be immune to judicial review (because you favour those laws) but that laws you do not favour (such as Obamacare) should be subject to judicial review. You’re basically saying “it’s okay for me to use the judiciary to overturn laws I don’t like because I think they violate the constitution but it’s not okay for people who I disagree with ideologically to do the same”. Either laws passed democratically (as both Obamacare and Prop 8 were) should be subject to judicial review or they should never be subject to it. You can’t have it both ways.

          • $36544368

            The people of California voted for Prop. 8. Obama and his cronies in government put Obamacare into law. There is a difference.

          • CitizenGeek

            So… laws passed by congress are not democratic?

          • Matthew T. Mason

            When a million people hit the streets of DC saying they don’t want Obamacare or the tax increases that will come from it, and a Democratically-controlled Congress says, “F you, we are giving it to you anyway,” I’d say no.

          • $36544368

            You know exactly what I mean. They are NOT the same thing. I didn’t get to vote for or against the ACA. I did get to vote for Prop 8. And lately? Most laws passed by congress are ridiculous!

      • Scott Carroll

        You misunderstand my point. I’m all for judicial review. It’s one of the safeguards in our Constitution against overreaching legislative bodies. What I object to is a TAINTED judicial review. Having laws judicially reviewed by clearly biased judges who Refuse To Recuse is not a Constitutional notion.

        Prop 8 was passed democratically but Obamacare was not. Obamacare was passed representatively. If the people were allowed a plebiscite on Obamacare like they were Prop 8, they would (if public opinion polls are to be believed) have voted against it.

        I think Obamacare is a truly horrendous law that will destroy the quality of health care in this country. It is filled with hidden costs and unintended consequences that we are just beginning to feel the effects of; but it was passed by representatives that the people were dumb enough to vote for. People in free countries get the government they deserve, every time.

        As Obamacare drains the blood (pun intended) out of our robust, technologically advanced health care system, the voters who put the people in place who then put this law in place have only themselves to blame. Just a shame that I have to suffer along with them.

    • Matthew T. Mason

      This is what I do not understand: Why is it even getting this far? Have the attorneys for Prop 8 been using a different argument thus far? I mean, come ON! You have a homosexual judge that not only refuses to recuse himself to remove any and all appearances of impropriety, but the text of his decision clearly shows a bias. Only a low-grade moron would let it stand. So what is going on here?

      • wayne

        …..and, I suppose, a female judge cannot hear a rape case?……a divorced judge cannot hear a divorce case, nor can one who has never married? Had you advanced even a scintilla of evidence that Walker had deviated from the correct application of the law and rules of constitutional construction, I might grant you some slack. When the proponents were made to bring into court proof of their horrid TV ads, (gay people convert kids to homosexuality; gay marriage will ruin straight marriage,etc,etc.) they knew the jig was up, since no such evidence existed. Thus, they made it very easy for the judge. Their briefs on appeal fail for the same reason. They have not cited even one GOVERNMENTAL interest which is served by excluding gays from marriage. It will be an easy task for SCOTUS.

        • Scott Carroll

          How, pray tell, does a female judge hearing a rape case personally benefit from her decision? How does a judge who is a divorcee personally benefit from hearing a divorce proceeding?

          This judge was in a long term homosexual relationship and he failed to disclose that fact. He stood to personally benefit from his decision. This is not rocket surgery. Would you allow a judge to hear a case involving a corporation in which he personally owned stock?

        • Matthew T. Mason

          Try reading the nearly 200 page decision written by Walker then come back and say that again.

        • http://www.vatican.va/ Rulz

          “They have not cited even one GOVERNMENTAL interest which is served by excluding gays from marriage.”

          No kids.

          Besides, burden of proof is for you to make.

          Don’t see it.

          • AWomaninTX

            @ Rulz

            No kids? Really?

            So every married straight-couple need have children in order to be valid? That truly is a weak argument.

        • AWomaninTX

          Thank you, Wayne Peterson! The suggestion that he he ruled as he did because he is gay can be applied the other way around. had he been straight & ruled differently, the same logic would apply.

        • http://pulse.yahoo.com/_IQIGXRVWW5XRETNV25R4FATCOM ssenecal5000

          Umm, the govenment needs a compelling reason to DO something not a compelling reason not to do something
          The government has a compelling reason to record the relationships of breeders , who create children that need to have their biological righs represented in a court of law…represented by the state in divorce, custody and child support cases.
          There is no compelling reason to record any homosexual union , ever .
          There is never an instance where the court can assume , by virtue of a marraige certificate alone, that both adults are the biological parents of the same child. Since that can not be assumed in any instance, there is no compelling reason to record any homosexual union
          As for the “Lovin’ and being together” part of marriage…it has nothing to do with a LEGAL marraige , That part is the relgious./ceremony part which is not needed for a legal marraige .
          The ceremony is a private affair ,as are the vows of love and commitment , The State is not involved in it at all and more importantly , any gay could can already have that part in all 50 states

          • http://www.facebook.com/people/Stephanie-Warren/100001648091118 Stephanie Warren

            did you just call heterosexual people “breeders”?

        • http://pulse.yahoo.com/_IQIGXRVWW5XRETNV25R4FATCOM ssenecal5000

          Umm, the govenment needs a compelling reason to DO something not a compelling reason not to do something
          The government has a compelling reason to record the relationships of breeders , who create children that need to have their biological righs represented in a court of law…represented by the state in divorce, custody and child support cases.
          There is no compelling reason to record any homosexual union , ever .
          There is never an instance where the court can assume , by virtue of a marraige certificate alone, that both adults are the biological parents of the same child. Since that can not be assumed in any instance, there is no compelling reason to record any homosexual union
          As for the “Lovin’ and being together” part of marriage…it has nothing to do with a LEGAL marraige , That part is the relgious./ceremony part which is not needed for a legal marraige .
          The ceremony is a private affair ,as are the vows of love and commitment , The State is not involved in it at all and more importantly , any gay could can already have that part in all 50 states

    • DrSamHerman

      Journalism is NOT a profession. Journalism lacks the normal components of a “profession”, including self-governance; formal educational and experiential requirements; accountability for malpractice; and finally ethics. Journalism is a line of work, and a dishonest one at best.

      • JoeMyGodNYC

        Make sure you post this in every thread about “journalist” Michelle Malkin.

        • DrSamHerman

          She’s actually been a reporter, unlike most journalists at left wing sources. Don’t you leftists ever get tired of regurgitating the same crap?

          • JoeMyGodNYC

            Actually Malkin began her career as an opinion columnist for the Los Angeles Daily News. She’s never worked as a reporter in the traditional sense.

          • DrSamHerman

            You are going off of the Wikipedia page. Her bio on her website says she was at the Seattle Times for three years. She covered primarily state and local government issues. I would say she worked as a reporter, more so than leftists.
            Tell me again why we should give a damn what you say?

          • JoeMyGodNYC

            Well, no. She was also an opinion columnist at the Seattle Times. In fact, that’s where she first came to my attention. Malkin was hired directly onto their editorial board. You can still find her columns in their archives.

          • $36544368

            So answer the question…why should we give a damn what you say? And why the hell are you here? You seem to have gone to a lot of trouble to look up Michelle Malkin’s information…it would be nice if you spent that much time looking up some of the truths that are posted here, backed up by fact.

          • JoeMyGodNYC

            I understand. I was right, therefore I must be destroyed. OK!

          • $36544368

            Uh…I think you already are ‘destroyed’…that makes no sense whatsoever. You weren’t right. Your posts have been replied to with corrections about your ‘facts’.

        • http://www.vatican.va/ Rulz

          Could you consider changing your user-name? I’m not fond of the use of God’s name except in prayer.

          Thank you in advance.

    • E Quilibrate

      On behalf of all termites, I object to the characterization.

    • http://www.vatican.va/ Rulz

      Don’t agree with you on gay marriage.

      Thumbs up for the Constitutional argument. Should be a state issue.

      • Shawn Gillogly

        Should be. But then judges do this and turn it into a Federal One.

    • http://pulse.yahoo.com/_IQIGXRVWW5XRETNV25R4FATCOM ssenecal5000

      Judge Walker is the wild card for upholding Prop 8 and DOMA

      You see DOMA was upheld in 5 federal courts. Each time the gay activists refused to appeal knowing they’d lose if it ever got to the Supreme court
      So a plan was hatched by conservatives and Bush appointees to drop the winning arguements when defending DOMA and then Prop 8. This lulled the prog-gays into thinking the only agrument the defenders were going to bring to court was the weak ones .
      It took years and Walker was part of the plan , he even gay’d himself up to make it seem like the gays could win in the Supreme court and that his decision was based on him being on their side

      Only after the Supreme court accepted the cases did the defenders wipe out the real arguments that are assured of winning.

      What will happen? marriage will be upheld…rights based on sexual desires do not exist, the purpose of marriage only addressing the biological rights of children, not of adults . ANd laws that exclude people from their own money , like with SS benefits. will be struck down.—everyone should be able to will their unused benefits to anyone they choose. This will require SS to be privatized , each person having their own private SS account

      Big win for Conservatives and for all single people

    • http://pulse.yahoo.com/_IQIGXRVWW5XRETNV25R4FATCOM ssenecal5000

      Judge Walker is the wild card for upholding Prop 8 and DOMA

      You see DOMA was upheld in 5 federal courts. Each time the gay activists refused to appeal knowing they’d lose if it ever got to the Supreme court
      So a plan was hatched by conservatives and Bush appointees to drop the winning arguements when defending DOMA and then Prop 8. This lulled the prog-gays into thinking the only agrument the defenders were going to bring to court was the weak ones .
      It took years and Walker was part of the plan , he even gay’d himself up to make it seem like the gays could win in the Supreme court and that his decision was based on him being on their side

      Only after the Supreme court accepted the cases did the defenders wipe out the real arguments that are assured of winning.

      What will happen? marriage will be upheld…rights based on sexual desires do not exist, the purpose of marriage only addressing the biological rights of children, not of adults . ANd laws that exclude people from their own money , like with SS benefits. will be struck down.—everyone should be able to will their unused benefits to anyone they choose. This will require SS to be privatized , each person having their own private SS account

      Big win for Conservatives and for all single people

  • CitizenGeek

    First of all, do Twitchy’s readers think Mr Walker should have recused himself from the case simply because he is gay? Should African-Americans never hear cases concerning civil rights, also? Or is it just the gays that are incapable of being unbiased professionals? Secondly, Patterico is merely postulating a “cosy” relationship between the anti-Prop 8 legal team and Mr Walker. There is no actual evidence that this exchange was anything more than what it appears to be: that the lower court judge is interested in listening to the Supreme Court deal with his decision but was worried he may be an unwanted distraction for the ‘winning’ side in that case.

    • TocksNedlog

      Perhaps you should actually read the entire story at Patterico’s website.

    • Matthew T. Mason

      Obviously you didn’t actually read the story: “Walker concluded the email with an invitation for Walker, Olson’s partner, and others to get together at Christmastime.” This is not actual evidence? Maybe in Davidland, population one. Us rational folks know better.

      • CitizenGeek

        Judges and lawyers are frequently friends… you know, because they both work in the same profession. Also, Vaughn Walker was *affirming* the findings of the California Supreme Court. You’re making it seem as though some “homosexual activist judge” turned the law on it’s head to get a decision he wanted personally because he’s gay and also because he’s BFFs with the plaintiffs’ lawyers when that clearly is not the case. His decision was also upheld by the circuit court. I’m sorry, I just don’t buy your narrative.

        • Matthew T. Mason

          Excuse me, David, but if judges and lawyers are friends it means they cannot be involved in the same case. Ethics and all that. Clearly there is the suggestion of a relationship that goes beyond professional (and I don’t mean romantic). The question is, how far back does it go?

  • nc

    Please stay home, Judge Walker. As a California voter who actually thought my vote meant something (twice!), you’ve done quite enough.

  • JoeMyGodNYC

    Walker retired from the bench almost two years before he emailed Ted Olson to ask if he should attend the Supreme Court hearing on the very case that made him famous. I give him props for considering that his presence in DC might be distracting. I think Olson made the right call in waving him off, too.

    • TocksNedlog

      And that time-gap means what?

      • Matthew T. Mason

        You should actually ignore Joe. He is a crass, rude homosexual atheist who is continuously disingenuous as the ends justify the means.

        • JoeMyGodNYC

          I’ll cop to crass, rude homosexual atheist. Can’t see what was disingenuous about my comment, though.

        • CitizenGeek

          What an awful thing to say. Nothing about Joe’s comment here seems crass and certainly does not seem rude. Doesn’t seem particularly homosexual or atheistic either.

          • Matthew T. Mason

            Go to the man’s website. Then come back and we’ll talk.

          • http://www.facebook.com/luke.givens.963 Luke Givens

            Maybe try looking up “ad hominem” on wikipedia and we’ll talk.

          • Matthew T. Mason

            HAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA

      • JoeMyGodNYC

        It means that any private citizen is perfectly able to attend any public event he chooses.

        • TocksNedlog

          And WHO said that he should not be able to attend? Nobody around here.

    • Sons Thunder

      If Olson and Walker want to avoid the appearance of a conflict of interest, they really need to go duck hunting together more often.

  • TocksNedlog

    Ah, there’s nothing quite so liberating as the dropping ALL pretense of impartiality, is there, Judge?

  • Guest

    Whatever happens will not matter. Even if the Supreme Court rules in Prop 8’s favor, gay marriage will not suddenly become the law of the land, in fact most States will ignore it. Read Article Three cases brought before the Court are decided on a case by case basis. But then again why is the government getting involved in marriage anyway?!

  • wayne

    It was a perfectly gentlemanly and professional thing which Walker did. As a district court judge who issued a very thorough and important decision, of course he would be very interested in hearing the arguments and no doubt he has read all the briefs, since it is a common professional courtesy for both sides to furnish the trial judge with a “courtesy copy” of the briefs on appeal. In making his decision, the votes didn’t matter, nor could they possibly have under our system of constitutional law. Thankfully that document does not create an exception to due process of the law nor to equal protection of the law where a majority of voters went astray of the constitution. If that were permissible, we’d all be in deep crap!

    • Matthew T. Mason

      What a colossally ignorant thing to say. Would you like to tell me where the Constitution gives you the right to marry? Oh, that’s right: It doesn’t. The issue has been addressed, however. “The powers not delegated to the United States by the Constitution, nor
      prohibited by it to the States, are reserved to the States respectively,
      or to the people.” This is the Tenth Amendment. As you can see, it grants the authority to regulate whatever isn’t specifically mentioned in the Constitution, such as marriage to the states. Which is why you need a license to marry, much as you do to drive, fish, hunt, etc.

  • http://www.black-and-right.com/ IceColdTroll

    Here’s a notion. It’s crossed my mind before, and I wouldn’t swear it’s entirely original, but how’s this:
    Smile, and let them have “legal marriage.” As for the rest of us, let’s us refudiate the whole idea of “legal marriage” ourselves. Let those of us who enter into a standard man/woman relationship do so =purely= as a ceremony of our churches or synagogues or what have you, and observe it strictly under the title of “Holy Matrimony.” Unless I’m mistaken, that is the formal name used in most ceremonies anyway. It will require a bit of civil disobedience on the part of officiating clergy, who ordinarily require the formal license beforehand, but I’m sure that after a test case or two, this requirement will be rejected as an unwarranted entanglement of church and state — and how ironically enjoyable that will be! There is, after all, precedent: baptismal records are routinely accepted for some purposes as establishing birth and identity, and those are purely an ecclesiastical function. As for those of us who are already married — it will be a very simple matter to deny that we are “married,” and state that we are “joined in Holy Matrimony” instead. It would be a difficult time, especially regarding the legal (and tax!) consequences going with the official status, but no more difficult than what those who are demanding it have endured. I don’t know for certain, but I suspect some groups, such as the Amish, already work under such a system. Perhaps some details could be fidgeted around the edges; women could, if they chose, file for a Change of Name order if they wished to adopt their husband’s name. In other words, though — let THEM have the word. Words are only symbols, after all. We will keep the reality.

    This would have an additional side effect, eventually — it would either prove the sincerity of those advocating for “non-traditional” marriage and preserve the sanctity of what we now recognize; or else it would demonstrate their insatiable hostility and envy when they too demand the recognition of “Holy Matrimony.”

    And yes, Shirley, I’m very serious. I am not trolling (I save that for the disloyal opposition) or flying this as “A Modest Proposal.” What say?

    • Sons Thunder

      I truly don’t understand what your ‘modest proposal’ would accomplish. You seem to be saying that you want to give up the term ‘marriage’ for straight couples and reserve it solely for homosexual unions. Am I missing something or is this all you are seeking to accomplish?

    • nc

      ICT, I appreciate your effort, but I think you’re missing the point. Do you really think that the goal is “legal marriage?” This train has obviously left the station, picked up steam and is thundering down the tracks. So it’s going to happen, no matter what the Sups say. They’ve got the Millenials on board.

      So then what? What’s the next step in this untested social experiment? Think two guys in those twin tubs and you know where I’m going. And if anyone dares to show any preference to heterosexual couples in say, adoption choices, they will be vilified, or worse, as bigots. This stuff has already begun.

      At CPAC, Eric Metaxas, who spoke with Dr. Carson, said that marriage is a “load bearing wall” of society. He said you can remove it if you wish, but there’s no guarantee the structure will stand.

      I truly believe future generations will curse us for the damage we will do for allowing this to happen.

  • Guest

    The judge is an attention-seeking gay activist from Mexifornia,
    of course he will turn up…
    wearing a bridal tutu.

  • InGodITrustAlways

    Pro pedophile activist want the term “Adult
    Child Sex Abuse” changed to ” Inter-Generational Intimacy.” They see how
    effective word play is and how gullible people are to it. Don’t be a
    fool to this tactic. More and more groups are trying to legitimize their
    sickness, and less and less people are doing anything about it.

    EVIL never stops! That is why I am against
    any sodomy or lesbian or anything outside of sex within the bounds of
    the Holy scriptures. It is not about hate. It is about knowing that
    our societies will not survive! And the horrors that will
    follow, that are indeed here now, will be worse than you can
    imagine…unless you have read the scriptures. We as societies are not
    moving forward…we are leaping backwards, faster and faster each day.
    God help us.

    Bestiality lovers want their ‘rights’ too. NAMBLA just can’t wait for their turn. WE MUST take a stand against evil, no matter whose feelings it hurts. And our poor children are caught in the middle of all this perversion. God help us if we accept these evils.

  • RightThinking1

    This guy is to the court case as Sandusky was to youth camps.

  • TocksNedlog

    And WHO said that he was required to ask someone permission to attend? Oh, that’s right — no one.

    Nice straw man argument.

  • http://twitter.com/thetugboatphil TugboatPhil

    Just curious, when did you last check his citizenship status? Do you have access to public records? I don’t think you’re supposed to reveal that information on the internet.