In an ordinary case, as I indicated here, there aren’t many district court judges whose decision I’d rather be seeking to affirm on appeal for one of my clients than Judge Vaughn Walker. But Perry v. Schwarzenegger, in which Judge Walker struck down California Proposition 8, is no ordinary case.
Given the landmark nature of the case, and the kind of “findings” on which a decision would tend to rest, I doubt that the opinion of any district court judge would count for much on review, especially before the Supreme Court. And here, as Ed Whelan shows, there are special reasons why Judge Walker’s opinion might be discounted.
First, his key claim that the intervenors who defended Proposition 8 “failed to build a credible factual record to support their claim that Proposition 8 served a legitimate government interest” appears to rest on a misconception of what constitutes evidence, coupled with a badly distorted version of what counsel for the intervenors stated during his closing argument.
Second, the Supreme Court has already found fault with Judge Walker’s handling of this case. It rejected his decision to televise the trial and rebuked him for the procedural irregularities associated with that decision.
Finally, there is the question of whether Judge Walker should have recused himself, due to his own same-sex relationship. Ed argues:
[W]hether Walker’s recently reported same-sex relationship requires his recusal may well depend on facts that Walker has not seen fit to disclose. It’s the usual practice for a judge to advise parties at the outset of a case of information that might give reasonable cause to question the judge’s impartiality. Walker’s failure to do so would seem yet further evidence of Walker’s manifest inability to be impartial.
If, as is quite possible, the Supreme Court decides to rule the same way that Judge Walker did, it will likely do everything it can to make its potentially inflammatory decision seem legitimate to a skeptical public. To this end, the Court may be more inclined to ignore the trial than to use it as a building block for the decision.