Release of Prop. 8 Tapes Shows Judicial Hubris

Posted: Sep 22, 2011 12:01 AM
At first blush, Chief U.S. District Judge James Ware's decision to unseal videos of the federal trial challenging Proposition 8 would seem to be a victory for truth, justice and open government. But you can't always tell a video by its jacket.

The deck was stacked from the start of former Chief U.S. District Judge Vaughn Walker's handling of a federal challenge to California's same-sex marriage ban -- and not because he's gay.

This has nothing to do with the fact that Walker was involved in a long-term same-sex relationship. A gay judge has as much right to preside over a same-sex marriage ban as a heterosexual judge, just as a female judge has an equal right to preside over a gender discrimination case.

It's his other orders that taint Walker's decision to overturn the 2008 ballot measure -- and his use of the videos as a personal prop.

Walker ordered the Yes on 8 campaign to release its internal memos to plaintiffs seeking to overturn the measure. Keenly aware of the likely chilling effect of that order, a three-judge panel unanimously overruled Walker.

Then there's his order to allow cameras in the courtroom. Walker described the trial as "an ideal candidate" for live broadcast to other courthouses.

Let's say you believe in broadcasting trials purely on principle. In that case, Prop. 8 would be the last case you would propose for the debut of witness testimony.

Opponents argue that recording trials could lead to retaliation against witnesses -- which most judges don't want to happen. That already has occurred with Prop. 8. After their names were made public, a small number of donors were forced to resign from their jobs. Clearly, would-be Yes on 8 witnesses had reason to fear that they would be harassed.

Later, when the U.S. Supreme Court stopped Walker's plans, it did so with this rebuke: "The District Court attempted to change its rules at the eleventh hour to treat this case differently than other trials in the district."

After Walker ruled against Prop. 8, he sealed the videos pending appeal. Later, however, Walker broadcast part of the recordings at a speech that was aired on C-SPAN -- which led to the controversy that led to Ware's ruling.

And how did Walker get the sealed evidence? As the San Jose Mercury News reported, Ware admitted that he himself gave Walker the recordings. It shows the arrogance of this district that its present and former chief judge treated sealed evidence like a trophy.

"They think they're untouchable," observed Carla Hass of Yes on 8.

And why not? Having given Walker the videos, Ware felt no need to recuse himself on the video question -- just as Ware felt no need to resign from the bench in 1997, when it became known that for years, he had been lying about a group of white teenagers killing his brother in 1953. (Yes, 13-year-old Virgil Lamar Ware was shot and killed in Alabama, but he was not Judge Ware's brother.)

Ware may pay homage to "aspects of the federal judicial system that foster public confidence in the fairness and integrity of the process." But fairness? Integrity? Ware treated the recordings as spoils that rightfully belong to the victor. Then he issued a ruling that found he was right to do so. In the cause of transparency. Otherwise known as hubris.

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