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.




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No point in writing for anyone else on SCOTUS, really: Kennedy will decide this case. Whether he can tailor his decision to attract any of the freedom-loving bigots on the right remains the only open question that I see.
I wonder how long it will take Walker to lift the stay?
Any bets going on?
Any guess about how long it will take to work its way to the Supremes?
Where is everyone today? Is it a holiday I wasn’t told about?
Fast, I’d say. I fully expect the stay to come off next week some time, for the bigots to appeal that (unsuccessfully) to the Circuit Court and SCOTUS. Then the marriages can begin: Gaypocalypse!
No Holiday today but next Tuesday is Pueblo Revolt Day! That’s when in 1680 the Rio Grande Pueblos, Acoma, Zuni and Hopi kicked the Spanish out for 20 years.
Mercy! Since gay marriage will destroy “real” marriages I guess the divorce courts will be busy. The “chicken little” folks will all have to go to mental health clinics and move to Nebraska.
Mob rule vs the Rule of law. Justice Walker has employed reason, equal protection of rights. The Taney Court “ruled” Scott was property with no protection or rights. Can you believe it? An educated man considered property? For the benefit of who?
Looks like the The Roberts SCOTUS is following a similar path to Taney with the recent “pro corporate cash” decision. Where if you have enough cash you can spin lies into gold………
Concerning your question… The answer! It will get to SJC fast, for purposes of political divisiveness and obliterate that which truly enslaves America!
Am I the only one who read the quote from Erwin Cheminsky and thought, well, duh. As a lay person, not ever taken any law classes, the path Walker took seems to be the intelligent one. And, of course, he’s going to write an opinion that has a better chance of not being overturned.
Does anyone know what happened to the question that the proposition should never have been put on the ballot to begin with?
I’m looking forward to news on the stay, also, and too.
This has been quite a news cycle. I’ve heard enough sound bites from the Women Who Hate other people having rights too, for a lifetime. But, I realize the hate will continue. Those silly girls. Did you see Anderson Cooper’s interview with that woman from NOM? Just. Wow. I guess I’m still naive.
And how is Justice Kennedy’s ticker these days? How old is the Honorable Justice anyway? (:>
Eli has a fresh cross-post available: The Other Gaypocalypse
There are 80 — count them — “Figures of Fact” in Walker’s ruling.
“Figures of Fact” cannot be dismissed out of hand. To challenge them they must be dismantled with as much effort as was involved in creating them — ie. evidence to contradict Walker’s evidence.
IOW 80 Masters Theses.
That’s why I suspect the Supremes will take a pass on ruling on this case if it’s submitted to them.
Kennedy is 74 since his recent birthday on July 23.
He had a heart stent inserted in 2006 after chest pains but no damage was found to his heart. I haven’t been able to discover if he’s had any problems since then or if he is living in a heart healthy way. His father died from a sudden heart attack in 1963.
American Family Association (presumably among others) is calling for Walker’s impeachment.
http://www.afa.net/Detail.aspx?id=2147497248
I have the utmost respect for Walker. I love smart cookies. Go Justice!
Oh, fuck them. Can I say that here? I mean in a non-violent way.
Judge Walker made 80 Findings of Fact, not Figures of Fact.
Why does James Dobson hate St Ronnie? (who appointed Walker)
It really is a thrill to read such a well-written piece of work…(Can I say that without sounding like Matthews). I heard alot of criticism yesterday about the paucity of evidence on the losing side; so they get what they deserve. Couldn’t really even be bothered to put on a case. How stupid. Still my favorite (I guess) comment from the woman who opined that Gay Marriage is never mentioned in that ol’ Constitution. Don’t know what she thinks about civil rights, justice, equality.
I think there is something pretty awesome about watching the gays’ struggle having such a profound impact for fairness in this country. Talk about relieving oppression…Nice. Surrounded by the dignity of a very important legal opinion. Has our President said anything?
Uh-oh! Time to haul out — the Dramatic Prairie Dog!
A 4-4 tie would not be sufficient to overturn Walker’s ruling IF the 9th Circuit Court of Appeals does not do so first. If the appellate court overturns Walker then it will mean that a 4-4 split will result in upholding the overturning of Walker. What to watch for is who is chosen from 27 active judges (by a random computer program) to be on the 3-judge panel at the 9th Circuit. Most of them have been chosen by Dems but there are several reliable conservatives such as Oregon’s Diarmuid O’Scannlain, who once ruled that it was not improper for the Seattle police to use a taser on a pregnant woman. So not having Kennedy or a replacement on the USSC might matter.
I really appreciate the work Judge Walker has done to improve the odds of this ruling being upheld. Hopefully it will but in any event, thanks to him for his professionalism and for being on the right side of history.
You know, I don’t believe that the Constitution mentions marriage at all…nope, it doesn’t. I guess that means….all marriages are unconstitutional!!!!!
Well I hope you’re right David. But here’s another troubling “fact”:
Anthony Kennedy: “[A] legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.” Heller v. Doe, 509 U.S. 312 (1993)
Also, can’t let this one pass since you mention the Feddies:
Obama on Kagan: “There aren’t many law school deans who receive standing ovations from both the Federalist Society and the American Constitution Society. And I don’t know too many folks whose fans include President Clinton, Judge Abner Mikva, and Justice Ginsburg, as well as Ken Starr, Miguel Estrada, and Justice Scalia. ”
Frankly this makes me want to throw up.