Prop 8 Judge to Ted Olson: Can I Come To Supreme Court Hearings on Gay Marriage?

Patterico’s Pontifications posted today that Judge Vaughn R. Walker emailed former Solicitor General Ted Olson concerning whether his attendance at the Supreme Court’s hearings on gay marriage would be a “distraction.”  Olson, who served under the Bush Administration from 2001-2004, will be arguing against California’s law banning gay marriage (Prop. 8) next week, and has written that there’s a conservative argument to be had on this issue.   While Proposition 8 has been ruled unconstitutional, no same-sex marriage licenses can be distributed until the issue if fully resolved at the federal level.


Patterico wrote that:

Although the emails likely breach no ethical rules — Walker retired in 2011 — they do suggest a cozy relationship between Walker and Olson that some observers may find revealing. Walker seeks Olson’s opinion regarding attending the argument, defers to Olson’s judgment, and praises Olson’s legal skills. Walker’s demeanor in the emails is that of a well-wisher who wishes to make sure Olson’s argument is not disrupted, rather than that of an impartial former jurist. It is difficult to imagine that Walker sent a similar email to the defenders of Proposition 8, seeking their opinion as to whether it would be appropriate for him to attend.


The first email was sent by Olson’s law partner at Gibson, Dunn, & Crutcher to Vaughn Walker on Friday, December 7, 2012. In the email, Olson’s partner forwarded a news alert from the Wall Street Journal, announcing that the Supreme Court had decided to take up the gay marriage cases. The partner’s email read, in its entirety: “Well, well…..the day of reckoning approaches. Should be very interesting.” The email’s brevity and friendly tone suggest the existence of a social acquaintanceship between Walker and Olson’s partner, a conclusion that is confirmed in later emails.

Walker responded later that evening, saying that he had received a “barrage of media calls” that day, which he had mostly “managed to duck” because he was in a mediation. Walker added:

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.”

The following Monday, December 10, 2012, Olson’s partner responded. The email is worth quoting at length:

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.

Ted, David [Boies], and AFER [the American Foundation for Equal Rights] are discouraging demonstrations or other “media events” in connection with the argument as they are concerned with negative reactions from some of the Justices. While your simply coming to observe the argument certainly isn’t intended as a “media event,” it might take on that character. My friend, you are just too well known to slip quietly into the Supreme Court chamber unnoticed. I’d like to attend myself but I’m told that the demand for tickets will be so great we aren’t even sure we can accommodate all of the trial team and Olson/Boies immediate families.


Patterico noted that Judge Walker’s “personal situation” referred to in the email relates to his relationship with another man, which he detailed after he struck down Prop 8 in 2010. Yet:

having been told about Olson’s media strategy, and that his attendance might undermine that strategy, Walker agreed not to attend, and said that he believed “Ted’s” argument would be “spectacular”:

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.

Walker concluded the email with an invitation for Walker, Olson’s partner, and others to get together at Christmastime.


 What’s the point?  Patterico wrote that this interaction is ‘Exhibit A’ when it comes showing that Judge Walker isn’t impartial.

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. All of this, cumulatively, suggests an emotional investment in the outcome of the case. The emails are likely to reinforce the widely held perception among Prop. 8 supporters that Walker was less than impartial in his rulings during the trial.


(H/T Patterico)


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