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Monthly Archives: February 2010

One of my favourite parts of watching US politics is when the Left and the Right get so caught up in defeating each other that they start to adopt each other’s arguments. In my mind, that’s as close to real bipartisanship as Americans get. And that seems to be exactly what has happened in the follow up to rumours that Walker CJ is gay. It’s just like the Sotomayor hearings all over again.
I’ve been sort of following the case of Perry v Schwarzenegger for the last little while (though I sort of stopped around the same time I had to work till 11 every day). Perry v Schwarzenegger is the federal challenge to the California gay marriage ban by Boies and Olson, the two opposing counsel in that most famous of cases Bush v Gore and is being heard by Chief Judge Vaughan Walker in the US District Court.
The long-standing tradition amongst judicial selection and personal characteristics of judges like their gender, race, religion or sexuality is that the Left steadfastly wants minority judges because they bring a diversity of views to the bench and aver that the law is not about following where logic leads but that the judge’s background and personal experiences influence their decisions. On the other hand, the Right has steadfastly said that personal experience is irrelevant and that judges should simply expound what the law is. For that reason, they say that judges should not be picked on the basis of their personal characteristics but purely on merit. Whichever side is right (and apparently in the case of Vaughan Walker, each side thinks the other side is right) it’s really quite delightful to see the hypocrisy on both sides.
The Right (or at least the Right opposed to gay marriage, liberty and individual rights – let’s not forget that Olson was lead counsel for Bush) has decided that the law is actually susceptible to individual bias even from judges that they nominated. The Left has decided that a judge’s sexuality has absolutely no bearing on their views, they will vote exactly the same way as a straight judge.
It’s exactly like the Sotomayor hearings all over again. After initially overreaching by saying her wealth of experience would bring compassion to the law, Obama quickly backpedalled during her confirmation hearings. Again and again, the Democrats averred that she was chosen on merit, that her latina background would have no influence on her decisions – even though Obama had publicly stated that her background was her reason for being chosen.
When it comes down to it, the law is as malleable as the judge who interprets it. I strongly believe that there is a ‘correct’ legal decision in most cases where if you follow the logic laid down in previous decisions you will get to the right answer. But clearly, if a judge doesn’t follow all the rules, if he or she allows their prejudices to influence their decisions then you won’t get that result. It’s just like with statistics. Properly used, data mining and statistics can reveal incredible truths (just read the book Freakonomics), but we all know that for the most part statistics are used to conceal facts with slightly dodgy methodologies. And whilst judges must write (sometimes very lengthy) judgments, they don’t have to detail every step of their thinking. In fact, it would be quite impossible to do so.
To be fair, I shouldn’t speak of some monolithic beast called the Left or the Right. Many on the Left are rightly saying “perhaps Walker is biased by his homosexuality, but any other judge would be biased by their heterosexuality”. It’s a difficult issue in general, which is why we shouldn’t be focussing on whether a person is or is not a member of a particular minority but on whether they are really independent.
Judge Vaughan Walker does not seem the kind of judge who does that. Reading his record from sources prior to the Perry v Schwarzenegger case it just doesn’t show in his personality. He’s a law and economics believer and has made some quirky judgments in the vein of Judge Richard Posner. ( Whilst I’m sceptical of whether law and economics is sustainable by the logical method of following precedent I described earlier, there seems to be little evidence of bias in Walker CJ’s previous hearings. A brief summary of his CV is all you really need. He was first nominated by Ronald Reagan, but was vigorously opposed because he had represented the US Olympic Committee in a case banning the use of the word Gay Olympics by some Bay Area group. He was renominated again by Bush Snr and failed for the same reason, then finally got appointed in 2004. (See also:
I’ve said all along that Walker CJ seems to be a fair judge. His decision to publicise the trial on Youtube was a controversial one, but let us not forget that he did not just let the TV cameras into the trial as Olson and Boies demanded. He placed restrictions on it, and ensured that the court controlled the cameras. It was probably more driven by his independent views than any bias towards the gay movement.
That said, the law itself recognises its gaping holes. It gives judges discretion to recuse themselves. It allows parties to petition the judge to recuse himself, and to appeal if the court finds against them. And even though I don’t think that there is any problem procedurally there is obviously a very great problem in terms of perception. And in America of all places, the judiciary must be seen to be impartial. We all know that regardless of whether the judge was or was not gay, one side was going to lose and that side was going to be a very sore loser about it. The gays would have been outraged that their individual liberties had been trampled by the judges (when all the judges were doing was upholding the will of the people as per the state constitution). The homophobes would have been outraged at judicial activism and expanding the Equal Protection in novel ways. But now instead of being able to throw sticks at the decision, the Right has a crowbar to wield. It’s terribly unfortunate, but I don’t see a way out.
Should Walker CJ do the honourable thing and resign? Or would doing it this late in the process merely demonstrate that he is influenced by the heavily political atmosphere. Should he keep going and let the appeals court finalise the case? We all know that the SCOTUS is going to hear this case eventually. At the end of the day, it all comes down to the fact that America is very uncomfortable with having an independent judiciary. And for that reason they seem institutionally incapable of having one. Anyone who thinks SCOTUS JJ are independent of which president appointed them is fooling themselves (at least those appointed after the Bork fiasco).
It’s a difficult issue. My gut says that Walker will simply follow the inertia and conduct the trial as impartially as he can then let the SCOTUS tear the case apart. If I had to lay down a bet on how long the judgment will be, I’m guessing it’ll run into the hundreds of pages. I’m not sure how long US judgments are in general, but Citizens United was like 200 pages with 7 judges writing. I’d guess that 100 pages is a good estimate.


I’m baaaack. I arrived in Australia just yesterday, so I am thinking of eventually posting here. Obviously, I’ve been overseas and unable to post and before that of course I was working (or enslaved in a coal mine somewhere). FYI, I’ve decided that I will not be posting about the Compton Cooking controversy at UCSD. I feel that it’s not my place as an outsider to publicly comment on your internal affairs. I’m not going to be one of those people who jumps on a bandwagon with only the barest scraps of information and launches huge protests. But if you do want my international perspective on the whole issue, then feel free to talk to me on AIM (paraprosdokian7) or via facebook. I will say though, to any non-UCSD people reading this blog that most media outlets and third parties have a rather distorted view of what is happening and they are not terribly good sources of information. For example, much of what the ACLU says is just plain wrong. Again, just AIM me or msn (

I’ve got a few posts I’ve half-written. There’s a post on airport security that I wrote whilst very very tired and annoyed at waiting in LAX. There’s also a half-complete post on whether gold is a good hedge against inflation, but that’s at a stage where I wrote it so long ago that I can’t be bothered finishing it. Perhaps at some point I will just upload all my half finished posts at one time for people to read. There’s some interesting stuff in there – its just that the post ends half-way throughthe middle.