Conservative Jurist, With Independent Streak
By JOHN SCHWARTZ
Published: August 5, 2010
Judge Vaughn R. Walker has ruled on cases involving newspaper mergers, high-tech corporate battles and the Bush administration’s use of wiretaps without warrants. But nothing has earned him as much attention — and ire — as Wednesday’s decision declaring California’s Proposition 8 ban on same-sex marriage unconstitutional.
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S. Todd Rogers/San Francisco Daily Journal, via Associated Press
Judge Vaughn R. Walker.
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http://www.nytimes.com/2010/08/06/us/06walker.html Judge Walker, the chief judge of the Federal District Court of the Northern District of California, is no stranger to controversy. An independent-minded conservative, he has come out publicly in favor of the legalization of drugs, and ruled in 1996 that the police used reasonable force when they pepper-sprayed anti-logging protesters.
The case involving Proposition 8 could ultimately be decided by the Supreme Court. Judge Walker stayed his decision temporarily and agreed to consider a longer stay that would last until rulings were issued on appeals by proponents of the law. The outcome of the case cannot be predicted, but jurists could well find themselves constrained by Wednesday’s carefully structured decision.
Judge Walker’s 136-page opinion lays out a rich factual record to suggest that the California law required irrational discrimination. “Proposition 8 places the force of law behind stigmas against gays and lesbians,” he wrote.
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.
“He’s engaged and asks difficult questions of everyone, sometimes making it hard to tell which way he is leaning,” said Cindy Cohn, the legal director of the Electronic Frontier Foundation. “He also appears to be having fun on the bench most of the time.”
Judge Walker presided over the Proposition 8 trial with a droll, disarming sense of humor. At one point, during a heated cross-examination of a defense witness, David Blankenhorn, the founder and president of the Institute for American Values, Mr. Blankenhorn became visibly upset, and suggested that the plaintiffs’ lawyer David Boies was laughing at him.
“I don’t think he’s laughing at you,” the judge said. “He’s amused at the back and forth. As many of us obviously are.”
Vaughn R. Walker was born in 1944 in Watseka, Ill.. He graduated from the University of Michigan and Stanford Law School. President Ronald Reagan nominated him to the federal bench in 1987, but the nomination languished for nearly two years and he was confirmed during the first Bush administration.
He was criticized for being a member of a private club that had refused membership to blacks and women; gay rights advocates also denounced his representation, as a private lawyer, of the United States Olympic Committee in its efforts to keep another organization from calling itself the Gay Olympics.
Since those days, several published reports have stated that the judge is himself gay. In February, The San Francisco Chronicle called it an “open secret.” Critics have argued that his sexual orientation was a source of bias that should have disqualified him from hearing the Proposition 8 case. Judge Walker has declined to discuss the matter.
Monroe H. Freedman, an expert in legal ethics at Hofstra Law School, said that while bias could lead to recusal in rare cases, “you could say, ‘If a gay judge is disqualified, how about a straight judge?’ There isn’t anybody about whom somebody might say, ‘You’re not truly impartial in this case.’ ”
Mr. Freedman cited a 1975 opinion by Judge Constance Baker Motley of Federal District Court, an African-American jurist who was asked to disqualify herself from a lawsuit alleging unlawful discrimination. “If background or sex or race of each judge were, by definition, sufficient grounds for removal, no judge on this court could hear this case, or many others,” she wrote.
Stephen Gillers, a professor at New York University Law School, said the time to raise such a challenge to Judge Vaughn had passed: if an issue is not brought up at trial, it is considered waived. “You can’t wait to see how a judge will rule and then say he’s the wrong judge,” Mr. Gillers said.
Jesse McKinley contributed reporting.
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