Vaughn R. Walker, retired judge who overturned California's Proposition 8 in 2010, asked attorneys who will be defending same-sex marriage in the Supreme Court next week if he could attend oral arguments, as revealed Friday morning in a series of emails posted by conservative blogger Patrick Frey aka Pattterico.
The emails indicate a friendly relationship between retired judge Vaughn Walker and Ted Olsen, one of the attorneys who argued to overturn Prop 8 in front of Walker.
At the time, there was controversy over whether Walker, who is gay, ought to have recused himself from the case. A federal court ruled in 2011 that he did not have to do so.
The emails were obtained exclusively by Patterico in an unredacted form. Patterico confirmed that the email addresses appeared to be those of Walker and Ted Olsen's law firm but as of his publication, Patterico had not received replies to his requests for comment or confirmation.
The apparent exchange happened in December 2012. One email that appears to be from Walker to Olsen's law partner says:
If you get a chance and it’s not out of line, 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.”
And the apparent email response from Olsen's law partner says, in part:
Vaughn, 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, now scheduled for March 27. 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.
In the emails, the partner goes on to say, "My friend, you are just too well known to slip quietly into the Supreme Court chamber unnoticed."
Walker apparently responds, "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 suggests that the law partner, Walker and others get together near Christmas.
Patterico--who personally supports same-sex marriage but opposes using the courts as a means to that end--believes that the emails give credence to the belief that Walker was not an impartial jurist for Proposition 8. As Patterico explains:
Walker was so invested in his ruling that he wanted to watch the appellate courts’ argument himself. He went out of his way to make sure that he consulted with the winning side to help them prevail in the appellate courts. Specifically, he sought to learn whether his attendance at the appellate arguments would be acceptable to the prevailing party--and when told it would not be, he deferred to the prevailing party’s media strategy.
Judge Walker has also spoken out on his own ruling, and on gay marriage in general. In a talk last year in San Francisco, the retired judge said that he "didn't anticipate a problem" related to his sexual orientation and the Proposition 8 ruling and described his belief on the issue:
A candid Judge Walker talked about the future of same-sex marriages. "The notion of people deciding to get married and to obtain the benefits of a marital relationship without regard to gender is an idea whose time has come and which is being ever more widely accepted, and eventually that will be the outcome," he said.