Prop 8 Judge Concerns — Maurine Proctor

by Maurine Proctor

Ed Whelan, who writes on a blog for National Review, is closely watching the anti-Proposition 8 in San Francisco, and makes some important observations. He says that the U.S. Supreme Court’s order barring the broadcast of the trial this week not only derails Judge Vaughn Walker’s intention of turning this into a ” high-profile, culture-transforming, history-making, Scopes-style show trial of the sponsors of Proposition 8″ but also “the majority’s stinging rebuke of Judge Walker’s procedural irregularities strongly signals that at least five justices have serious questions about his impartiality and judgment in this matter.”

As you know Judge Walker was “hellbent to broadcast the trial, presumably because of the massively increased coverage-on television and radio as well as on the Internet-that broadcasting would generate.”

Whelan continues:

“Walker has already been overruled by a Ninth Circuit panel (of three Clinton appointees, no less) on an important discovery question: The panel ruled that Walker, in his sweeping order authorizing the plaintiffs to obtain access to the private communications of Proposition 8’s sponsors on campaign strategy, grossly underprotected the First Amendment associational rights of the campaign sponsors.

“Further, as even a Washington Post editorialist who is a self-described supporter of same-sex marriage has put it in condemning Walker’s procedural shenanigans on the broadcast issue, Walker has flagrantly violated his duty to “be impeccably fair, [to] adhere without agenda to the rule of law and [to] be as transparent as possible.” This raises in the editorialist’s mind the natural question, “If I can’t trust Judge Walker to be unflinchingly fair about something that simple, how can I trust him to be fair to both sides when deeply held beliefs and constitutional rights are at stake?” The short answer that should be clear to everyone by now: You can’t, and neither can anyone else.”

Click here for entire article.

Ted Olson and David Boies-Dream Team?

When the anti-Prop 8, high-profile lawyers came together with their Hollywood backers to take on Prop 8, many among the same-sex marriage advocates were hesitant if the timing was right. Whelan again:

“Acceptance of, or at least acquiescence to, that decision appears to have come as a result of deference to the reputed strategic savvy of superlitigators Olson and Boies. But the Supreme Court’s order barring broadcast of the anti-Proposition 8 trial calls into question that supposed savvy.

“As law professor Dale Carpenter, an advocate of same-sex marriage, puts it in a Volokh Conspiracy post, yesterday’s [Wednesday’s] Supreme Court ruling is a “potentially ominous development for pro-SSM litigants”:

As an advocate, you’d rather not have the ultimate reviewing court call into question your judge’s objectivity on the third day of trial…. As an advocate, you’d rather not have the ultimate reviewing court see the opposition as David needing protection from your Goliath.

All in all, it’s a bad start for the judicial challenge to Prop 8.

The Moral Lib­eral Con­tribut­ing Edi­tor, Mau­rine Proc­tor, is a grad­u­ate of Har­vard Uni­ver­sity, Co-Founder and Edi­tor in Chief of Merid­ian Mag­a­zine, and Pres­i­dent of Fam­ily Leader Foun­da­tion. She has writ­ten and edited sev­eral books, worked for The Chicago Sun-Times and is an award-winning doc­u­men­tary writer and producer.

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