Ed Whelan on Judge Walker’s Lawlessness
Ed Whelan at the NRO Bench Memos provides the best analysis of Judge Walker’s overreach in his overturn of Prop 8. Today, Ed discusses the significance of the Ninth Circuit’s Stay order in the case. In case you missed the news, Judge Walker had originally ordered that same sex marriages begin immediately. The Proponents of Prop 8 asked him for a “stay,” until the appeals process is completed. Judge Walker issued a stay for 6 days. When the Proponents appealled that decision, the Ninth Circuit agreed with them, and ordered a stay, and expedited the case. Oral arguments will begin the week of December 6th.
Here is some of what Ed has to say:
The Ninth Circuit’s grant of a stay of Judge Walker’s judgment pending appeal provides yet further compelling evidence that Walker has gone utterly bonkers in his egregious mishandling of this case. Walker’s denial of the stay threatened to dramatically alter the status quo before a higher court could even review his radical ruling. Walker must have been thoroughly intoxicated by his own bias to imagine that his denial would stand. …
To any objective observer, Walker has discredited himself by his manifest bias. However the reviewing courts ultimately decide this case, I think it’s highly unlikely that Walker’s wild legal analysis or his crazed purported findings will advance his cause—and far more likely that they will do the opposite. The primary effect of Walker’s gratuitous resort to a trial has been to delay the ultimate outcome of this case by a year or so….
Walker’s reversals also call into question the judgment of the supposed dream team of plaintiffs’ lawyers, Ted Olson and David Boies. When a litigator knows that a trial judge is overeager to do his bidding, it certainly must be tempting to exploit that opportunity to the fullest. Far from resisting that temptation and keeping appellate review in mind, Olson and Boies have repeatedly egged Walker on. A year later, and with millions of dollars of attorney’s fees expended, what have they really accomplished for their clients?
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Justice delayed is justice denied.
“Justice delayed is justice denied.”
Which begs the question of whether Judge Walker’s decision is just.
How is it unjust to afford equal protection under the law to a class of persons that has historically and legally suffered from arbitrary discrimination?
How is it just to refuse to allow a people to amend their own constitution? Your arguments were raised before Prop 8 was even put on the ballot, and the California Supreme Court refused to prohibit the ballot. Your arguments were also raised after Prop 8 was passed, and the same court ruled 6-1 that Prop 8 did not violate any inalienable right. The California Supreme Court ruling, written by Chief Justice Ronald George, left no room for debate on whether the ballot initiative was legal. The Chief Justice noted that the ruling was made after “setting aside our own personal beliefs and values.” Do you believe that the California Supreme Count has six irrational bigots on the bench? Do believe they are ignorant of constitutional law? Do you believe Judge Walker was willing to set aside his personal beliefs and values?
Even the civil rights cases of the sixties allowed for the appeals process before they were implemented. Must every legal precedent give way before the demands of the plaintiffs?
You mean like how the citizens of CA in the late 60s passed a constitutional amendment that would have allowed citizens to deny selling their house based on race. See you guys don’t want to face that in the past that citizens voted to deny rights based on race. So are the voters always right? Is this happens in 2010 would we say well it’s the will of the people?
Tim, do you suppose that the California Supreme Court, which narrowly favored the redefinition of marriage, wasn’t aware of that? Yet they found that Prop 8 was constitutionally permissible both before and after the vote. How do you explain that? Maybe they thought the two cases were not similar, that race was not gender, that traditional marriage is not like racial discrimination, that the redefinition of marriage into something genderless not a fundamental right after all, that gays are well protected by family law in California, and that the bar to overruling the people is a fairly high one? If it is not a high bar, how low would you set it?
Walker has delayed and denied justice.