Some people may wonder how Judge Vaughn R. Walker is holding up under the brutal, often homophobic tirades to which he is now being subjected for his recent ruling on gay marriage. At a Stanford drug policy forum about a decade ago, we were seated together at the closing dinner. The interaction that evening makes me confident he will bear up well under one of those waves of vilification that the current U.S. political environment, 24 hour news cycle, and the Internet can combine to generate.
The profile in New York Times captured something
of Judge Walker, but Maureen Dowd did it better I think in much less space when she remarked off-handedly that in a 1940s movie, Judge Walker would be played by Clifton Webb.
At the time of our dinner, he had recently announced publicly that he favored the legalization of drugs, for which as a Reagan appointee he was being vilified by many conservatives. Soon afterwards, he would hand down a ruling stating that the public had no power to stop banks from charging ATM fees, for which he would be vilified by many liberals and populists.
During that dinner, I asked this clearly erudite and intelligent man how he dealt with all the public denouncement of his abilities and character. He shrugged and didn’t say anything, but across his face spread an impish Clifton Webb-esque smile that seemed to say “Well, isn’t a bit of fun to stir the pot now and then?”.
One thing that has been overlooked in all the controversy about Judge Walker and his opinion, and that is just how great a writer he is. If you haven’t read the full opinion you should. It is a masterpiece of clarity, requiring almost no knowledge of ‘legalese’ to understand, and the section on the values and limitations of ‘expert testimony’ could probably serve as a textbook chapter.
The Defendant-Intervenors never sought Judge Walker’s recusal, even though they could have done so merely by filing an affidavit setting forth facts showing that the judge was biased in favor of one party or against the other party, accompanied by a certification of counsel that the filing is in good faith.
This is rank speculation, but I suspect that the team of lawyers for the Proposition Hate defenders recognized the weakness of their position no later than when Judge Walker ruled that there would be a full blown bench trial, and they made a tactical decision not to challenge for bias, to provide political cover so that the Prop Hate supporters could blame a loss on the judge’s rumored orientation rather than the piss poor presentation of the defense. While the more unhinged among the opponents of same sex marriage are understandably disappointed in the result, they likely are happy as pigs in slop to have this red herring available.
I suspect that the (allegedly) gay San Francisco judge will become a major talking point in right wing fundraising appeals and in efforts to goose Republican electoral turnout.
John:
a) Judge Walker has stated he is gay, so there is no ‘alleged’ about it.
b) This was, according to lawyers I have read, widely known in some legal circles that dealt with him.
c) It is unlikely that Andy Pugno & crew was part of those circles
therefore, rather than some sinister ploy, it is likelier that Pugno was as surprised as were most people when he heard the rumor. That he didn’t do anything about it is not because he was plotting to have a political weapon, but because he is — as the trial showed — one of the stupidest lawyers in America, not quite Orly Taitz level, but the lowest level of sane stupidity you can find.
And, linking this to Keith’s other comment and post, I think many of the absurdities some people on our side come up with would be lessened if they’d just print out the following sign and put it above their computers:
So much of what we see is not long-ranged tactical maneuvering, but paniced blundering from mistake to mistake.
Prup, the Proposition Hate defense team was headed by Charles Cooper, a very highly regarded litigator. He was named by The National Law Journal as one of the 10 best civil litigators in Washington. When Vaughn Walker was originally nominated to the federal bench in 1987, Mr. Cooper was Assistant Attorney General for the Office of Legal Counsel. http://cooperkirk.com/lawyer.php?lawyer_id=3
Anyone with a modicum of political sense knows that this lawsuit is as much about politics as it is about law. I find it difficult to believe that that defense team did not want a political “Ace in the hole” to blame any adverse ruling on.
Mr. Cooper may have all the awards in the world, but his conduct in this trial was, from an intelligent layman and ‘law groupie’s’ point of view, abysmal. His whole positive case rested on his ‘expert’ witnesses — dubious to begin with. (Shouldn’t he have at least found some gays who woukd testify that they were satisfied with a domestic partnership, some older gay who could have countered the discruimination testimony by personal experience of the positive changes in attitude towards gays in his life time, even some parents or married couples who could have given some explanation — other than the true ones — as to why they felt gay marriage was a threat to their marriages or children. Sure, Boies would have made mincemeat of them, but at least there would have been a case to answer, and something for a homophobic higher court judge to latch on to.)
But it is in the expert testimony where the trial was so absymally done. Isn’t it first year pre-law that you should know what your witnesses will testify to, that your experts will at least have some actual credentials to support your calling them such, that you will not present an ‘expert’ as ludicrous and ludicrously unqualified that, by reports, Judge Walker had to keep from (deservedly) laughing him out of court. I am referring to the egregious Mr. Blankenhorn.
Furthermore, if you hire an expert, shouldn’t you see that he hadn’t previously expressed precisely opposite views before you hired him? Shouldn’t you make sure he’s actually read all the documents you’ve given him and that he claims to have relied on? See the discussion of Prof. Miller in Judge Walker’s opinion.
And shouldn’t you try and be reasonably sure that your exp[erts, when being deposed, will not make statements so strongly in your opponents favor that when you try to withdraw them, your opponent insists on their depositions being entered into the record? And isn’t it better to put them on the stand, or find a good excuse for withdrawing them, than to claim that they are afraid those nasty ol gays will physically attack them for appearing — as the proponents did quite literally.
If this was Cooper’s fault, and not Pugno overruling him at every turn, I am not sure why he is ‘highly regarded.’
Who goes around comparing people to Clifton Webb? Outside of “Laura” I can’t think of any movie I’ve seen him in that would be familiar to a general audience; and, anyway, he always struck me as a forgettable poor-man’s substitute for George Sanders.
Deebs,
Treat yourself this weekend to the 1946 version of “The Razor’s Edge”, a handsomely produced and intelligent adaptation of Maugham’s book. Webb’s oscar-nominated turn as Elliot Templeton is simply delicious acting and a joy to watch.
Keith
1. Before we sing Walker’s praises too much, remember him as the judge that thought it was just fine to apply pepper spray directly to the eyes of protestors. He was reversed:
http://www.albionmonitor.com/0005a/pepperappeal.html
I’d be very interested if anyone could find a case where on an environmental issue he favored an expansive rather than a restricting construction of environmental law. Good luck.
2. The quality of federal judicial work at the lower court level often depends on the quality of the law clerks and the quality of the briefing. Someone might want to compare how closely Walker’s opinion follows the wording from Olson and Boies. Nothing wrong with Walker using their reasoning and even their language, but credit where credit is due.
3. I heard Walker speak at my law school years ago, talking about unclear legal writing. He gave an example of a sentence he thought was incomprehensible. Other than being long, I didn’t see a problem.
4. I consider Walker to be an example of “simplistic libertarianism” rather than a more realistic version. Happy to have him reach the right outcome, but don’t mistake that for intelligence.
5. I’m not entirely surprised by Prop 8 defenders’ failure to make much of a factual argument. They probably knew that with Walker, their goose was cooked on factual issues where appellate courts defer to lower court judgments, and wanted to keep the focus on the legal issues where there’s no deference.
A nice, and timely, I think, Clifton Webb story. He was gay and applied for membership in the Palm Springs Racquet Club. He was turned down because the club “already had a homosexual.” To which reason Webb replied, “Well, what if he dies?”
Sam — LOL! Priceless, thanks. Keith
Webb’s Biography is due out fall of 2011.