The New York Times takes a look at Vaughn Walker, the George H.W. Bush-appointed federal magistrate who has been a guest speaker of the Federalist Society, in the wake of his ruling in the Prop 8 case. They basically come to the conclusion that he’s a judge who likes his rulings to be upheld:
Erwin Chemerinsky, dean of the law school at the University of California, Irvine, noted that Judge Walker had avoided choosing a tough standard of scrutiny for Proposition 8 that might have been rejected by a higher court. He instead relied on a relatively lenient test, asking whether the law had a rational basis for its discrimination.
Such carefully calibrated, tactical drafting of opinions comes as no surprise to those who have appeared in Judge Walker’s courtroom. On the bench, he analyzes each side’s arguments with a thoroughness that some advocates say can be unsettling.
“He’s going to pull it apart straw by straw, piece by piece, and give it back to you,” said Michael S. Danko, a lawyer who has argued before Judge Walker.
There’s no question that Judge Walker, like any other judge, I’d imagine, likes his rulings to hold up on appeal. That’s why he did two very specific things with the Prop 8 ruling. He established a rigorous fact pattern, because the appellate courts will have to deal with those facts in their opinions. And, he basically tailored his ruling with respect to precedent on cases decided by the one man who will determine whether his ruling will stand. Here’s Dahlia Lithwick:
Judge Vaughn R. Walker is not Anthony Kennedy. But when the chips are down, he certainly knows how to write like him. I count—in his opinion today—seven citations to Justice Kennedy’s 1996 opinion in Romer v. Evans (striking down an anti-gay Colorado ballot initiative) and eight citations to his 2003 decision in Lawrence v. Texas (striking down Texas’ gay-sodomy law). In a stunning decision this afternoon, finding California’s Proposition 8 ballot initiative banning gay marriage unconstitutional, Walker trod heavily on the path Kennedy has blazed on gay rights: “[I]t would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse,” quotes Walker. “‘[M]oral disapproval, without any other asserted state interest,’ has never been a rational basis for legislation,” cites Walker. “Animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate,” Walker notes, with a jerk of the thumb at Kennedy.
Then come the elaborate “findings of fact”—and recall that appellate courts must defer far more to a judge’s findings of fact than conclusions of law. Here is where Judge Walker knits together the trial evidence, to the data, to the nerves at the very base of Justice Kennedy’s brain. Among his most notable determinations of fact, Walker finds: states have long discriminated in matters of who can marry; marital status affects immigration, citizenship, tax policy, property and inheritance rules, and benefits programs; that individuals do not choose their own sexual orientation; California law encourages gay couples to become parents; domestic partnership is a second-class legal status; permitting same-sex couples to marry does not affect the number of opposite-sex couples who marry, divorce, cohabit, or otherwise screw around. He found that it benefits the children of gay parents to have them be married and that the gender of a child’s parent is not a factor in a child’s adjustment. He found that Prop 8 puts the force of law behind a social stigma and that the entirety of the Prop 8 campaign relied on instilling fears that children exposed to the concept of same-sex marriage may become gay. (Brand-new data show that the needle only really moved in favor of the Prop 8 camp when parents of young children came out in force against gay marriage in the 11th hour of the campaign.) He found that stereotypes targeting gays and lesbians have resulted in terrible disadvantages for them and that the Prop 8 campaign traded on those stereotypes.
As Lithwick says, the decision was written for a court of one. The former dean of the conservative Chapman University Law School said that he believed “Justice Kennedy is going to side with Judge Walker.” That was the entire point of the Boies/Olson strategy. Regardless of the political fallout, the success or failure with Justice Kennedy will prove the strategy’s worth.