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Chief Judge James Ware, who took over Prop 8 case after Judge Walker, will retire

Prop 8

By Scottie Thomaston

Chief Judge James Ware of the Northern District of California will retire in August. Ware is the judge who took over the case against Proposition 8 in 2011 after his predecessor Judge Walker left the bench. He decided a few of the remaining issues in the case, ruling that a gay judge doesn’t have to recuse himself in a case involving gay rights and issuing decisions about video records from the Proposition 8 trial. When he became chief judge, he announced that it would be for a short-term appointment. Ware has served as a judge since 1990.

U.S. District Judge James Ware, who has spent most of his career on the federal bench in San Jose, announced late Monday that he is retiring in August, opening up both a federal judgeship and the chief judge’s post. Oakland-based U.S. District Judge Claudia Wilken, next in line by seniority, will take over as chief judge, making her just the second woman to hold the top job in Northern California’s federal courts.

Ware, 65, has had a relatively short stint as chief judge, leading the court since January 2011. Chief judges typically served seven-year terms.

However, in an interview last year with this newspaper Ware said from the outset that he was unlikely to serve out his full term, planning to step down as a judge not long after he was entitled to full retirement benefits.

His departure along with several other vacancies in the district will give the next president the opportunity to make a mark on the district in terms of its judicial make-up:

Ware’s retirement will leave four vacancies on the Bay Area federal bench, giving the winner of this fall’s presidential election a chance to shape the region’s federal court. The Obama administration has yet to nominate anyone for three of the openings, and time may be running out for getting nominees through the Senate in an election year.

When Ware leaves in August, U.S. District Judge Claudia Wilken will become Chief Judge.


  • 1. AnonyGrl  |  May 2, 2012 at 9:06 am

    Best of luck to Judge Ware in his retirement.

    Walker, Ware, Wilken… interesting. :)

  • 2. Larry  |  May 2, 2012 at 9:43 am

    IIRC, Judge Wilken is currently overseeing the case Dragovich v Calpers, one of the DOMA challenges.

  • 3. MightyAcorn  |  May 2, 2012 at 1:03 pm

    Do we know much else about her? And I'm always nervous about vacancies on the bench when there's an election afoot…

  • 4. Lesbians Love Boies  |  May 2, 2012 at 1:09 pm

    Domestic Partnership CalPERS case
    United States District Court for the Northern District of California
    Judge Wilken has twice denied government motions to dismiss a lawsuit against California's insurance program CalPERS and its long term care program. The lawsuit was filed by three gay and lesbian couples and includes not only CalPERS but also the U.S. Treasury Department and the Internal Revenue Service. The lawsuit seeks to invalidate CalPERS policy on gay and lesbian couples and domestic partnerships that bars them from access to the insurance providers long term care program. Wilkin justified her decision, writing, " Although the Supreme Court has not established that sexual orientation is a suspect or quasi-suspect class for purposes of the equal protection doctrine, it held in Romer [v. Evans] that gays and lesbians, as a class, are at least protected from burdensome legislation that is the product of sheer anti-gay animus and devoid of any legitimate government purpose." The lawsuit targets government policy within the IRS and the Treasury department which prevents access to benefits for same sex couples, including the federal Defense of Marriage Act (DOMA), which the Obama administration has announced that it will no longer defend because deems it unconstitutional.

  • 5. Mark  |  May 2, 2012 at 3:10 pm

    if memory serves, we were supoosed to hear the status of the en banc hearing in April, or am I mistaken?

  • 6. Larry  |  May 2, 2012 at 3:49 pm

    If all had gone exactly according to the schedule, yes. But if the judges are taking more time to try and convince each other to vote for/against en banc hearing then there's no time limit. By my count, we're waiting around to hear decisions on:

    9th circuit En banc decision on Perry
    1st circuit decision on the Massachusetts DOMA cases
    a NY district court decision on the Windsor DOMA case
    a CT district court decision on the Peterson DOMA case
    9th circuit decision to have an initial en banc hearing on the Golinski DOMA appeal

    And probably some others. Not to mention more recent cases that are still waiting for hearings.

  • 7. Sagesse  |  May 2, 2012 at 4:10 pm


  • 8. MightyAcorn  |  May 2, 2012 at 5:22 pm

    Seems promising. Is there any possibility that Prop 8 could get kicked back down to the District Court? I don't think I've seen any discussion of that yet, maybe because the chances are remote-to-none?

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