An alleged friendly email exchange between a judge and the law firm that is arguing against California’s ban on same-sex “marriage” this week raised further questions about the judge and his objectivity in the original case.
The blog “Patterico’s Pontifications” March 22 published the email exchange, which it said it had obtained from a “trusted source.” It declined to name that source.
In the exchange, retired federal Judge Vaughn R. Walker, who had ruled California’s Proposition 8 unconstitutional, asked someone at the Washington law firm Gibson Dunn & Crutcher about whether Walker should attend oral arguments in the case. The email asked if “Ted” would think Walker’s presence at the Supreme Court oral arguments would be a distraction.
He was apparently referring to Ted Olson, a partner at Gibson Dunn. Olson, along with New York attorney David Boies, persuaded Walker to overturn Prop. 8. They are representing the American Foundation for Equal Rights (AFER), whose website says it is the “sole sponsor of the federal court challenge of California’s Proposition 8.” Olson and Boies, who faced each other in the contentious presidential election case of 2000, Bush v. Gore, will be arguing against Prop. 8 before the Supreme Court.
The case is one of two concerning the definition of marriage being considered by the high court. Oral arguments were heard yesterday, and arguments in a challenge to part of the federal Defense of Marriage Act (DOMA) were heard this morning. The court is expected to issue rulings on both cases by the end of June.
In the alleged emails, Walker, who retired in February 2011, takes a friendly tone with his interlocutor, who apparently is another partner at Gibson Dunn. The published emails were redacted to remove any names, but the Dec. 10 reply shows part of an email address, @gibsondunn.com, which is the domain name of the firm.
Aleteia.org placed calls and sent emails seeking comment from Judge Walker, Gibson Dunn and the person who runs the blog, identified on the website only as Patterico. Only a spokeswoman for Gibson Dunn had responded, promising to look into it.
“There’s no issue here,” said Robert Destro, professor of law at Catholic University’s Columbus School of Law. “But he was more than a little interested in this. Most trial judges would never consider going to watch the appeal of one of their cases. It gives the sense of having much more of a personal interest in the outcome. That was the concern people had from the beginning. … If he was that interested in the outcome, he probably should have let somebody else hear the case.”
But a professor at Ave Maria School of Law said the emails “suggest an ongoing relationship and level of familiarity that predated this email exchange.”
Every federal judge is bound by the Code of Conduct for United States Judges, Timothy J. Tracey, associate professor at Ave Maria School of Law, pointed out. “Those rules require Judge [Walker] to maintain the ‘integrity and independence of the judiciary.’ In particular, the rules say, ‘A judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment.’ A judge is to avoid even ‘the appearance of impropriety.’ A failure to follow the code of conduct subjects a judge to disciplinary measures.”
The alleged email exchange between Judge Vaughn and Olson and Boies at the very least gives "the appearance of impropriety," Tracey said. “The emails suggest an overly chummy relationship between the judge and the attorneys opposing Prop 8—the very attorneys he ruled in favor of in the district court. Most troubling is that the judge seeks Olson's advice on attending oral argument, defers to Gibson Dunn's media strategy, and goes so far as to praise Olson's legal skills. All those things are inappropriate for a relationship between a judge and the attorneys appearing before him. The judge looks like a partisan rather than a member of an "independent judiciary." His relationship with Olson and Boies seems to have ‘influence[d] [his] judicial conduct and judgment.’ That sort of behavior calls into question Judge [Walker’s] compliance with the Code of Conduct for United States Judges.”
“Additionally, if Judge [Walker’s] relationship with Olson and Boies and his emotional investment in the case prevented him from ruling in an unbiased or unprejudiced fashion, he should have disqualified himself from hearing the case in the first place. The failure to do so in some instances would result in the judgment being vacated and the case retried.”
Objectivity Questioned Before
Beginning in 1999, California expanded rights for same-sex couples, finally stating in 2003 that “registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses.”
In 2000, voters passed Prop. 22, restricting marriage to a man and a woman, but the California Supreme Court in 2004 ruled it unconstitutional. Counties issued more than 18,000 marriage licenses to same-sex couples before voters approved Prop. 8 in 2008, restricting marriage to one man and one woman. Unlike Prop. 22, Prop. 8 amended the state constitution.
When Prop. 8 was challenged in court, state officials refused to defend it, but proponents were permitted to intervene and do so. The California State Supreme Court upheld the proposition but refused to nullify the more than 18,000 “marriages” of same-sex couples that had been performed.
Then two same-sex couples sued in federal district court in 2009, and the following year, that court, under Judge Walker, declared Prop. 8 unconstitutional. Prop. 8 proponents took their case then to the 9th Circuit Court of Appeals, where on Feb. 7, 2012, a divided three judge panel upheld Walker’s decision. The court denied a rehearing, and proponents appealed to the U.S. Supreme Court.
The alleged email exchange with Walker began when the unidentified partner at Gibson Dunn forwarded a Wall Street Journal news alert to Walker on Friday, Dec. 7, 2012, that the high court had announced it would consider the appeal. The sender added the comment “Well, well….the day of reckoning approaches. Should be very interesting.” The sender CC’ed someone named “Thomas,” whose last name and email address is redacted. The “To:” line indicates the main recipient of the email is “Vaughn R. Walker (vrw@[domain name redacted])”.
Walker allegedly responded later that day (the time indicated is 10:10pm), and the sender line reads “Vaughn Walker [mailto:vrw[domain name redacted]] On Behalf Of JUDGE WALKER.” In it, he says he “received a barrage of media calls today and, due to being in a mediation, managed to duck all but one.”
Walker runs his own law firm in San Francisco.
“If you get a chance and it’s not out of line,” Walker allegedly continues, “you might ask Ted if he thinks my attending the argument would be an unwanted distraction. I won’t be hurt if the answer is ‘yes.’”
A response came, apparently from the same partner at Gibson Dunn, dated Monday, Dec. 10, at 11:38am. “Vaughn,” it begins, “Ted and I have discussed this over the weekend and, reluctantly, we do think it would be a potential distraction for you to attend the argument…. There will be a heavy press turnout and you are very likely to be recognized and asked to comment. Even if you refuse, your attendance will likely be covered and your personal situation, even though now irrelevant, again reported on.”
Walker’s “personal situation” apparently is a reference to his relationship with a same-sex partner. The judged revealed this relationship after he retired, leading some to wonder if his ruling against Prop. 8 were motivated in part out of self-interest.
The email continues: “Ted, David and AFER are discouraging demonstrations or other ‘media events’ in connection with the argument as they are concerned with negative reactions from some of the Justices.” David is apparently David Boies. “While your simply coming to observe the argument certainly isn’t intended as a ‘media event,’ it might take on that character,” the email continues. “My friend, you are just too well known to slip quietly into the Supreme Court chamber unnoticed. I’d like to attend myself but I’m told that the demand for tickets will be so great we aren’t even sure we can accommodate all of the trial team and Olson/Boies immediate families.”
In the alleged response, the final email published on the Patterico post, Walker responds that afternoon at 4:30: “Thanks for touching base with Ted about this. I am not surprised, understand fully and only modestly disappointed not to see the argument. Ted’s argument will be spectacular, I’m sure.”
He concludes by suggesting that the sender and “Tom” meet him and “Jaime” in New York City for “a cup of Christmas cheer.” It’s not clear who Jaime is.
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In an era of mobile microphones and apps that listen, both priest and penitent should be prudent about what they carry into the confessional