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Towleroad’s Ari Ezra Waldman on Yesterday’s Hearings

9th Circuit Court of Appeals Prop 8 trial Tapes

By Jacob Combs

As usual, Ari Ezra Waldman has an enlightening and in-depth piece over at Towleroad about yesterday’s hearing at the 9th Circuit.  Of course, his post is worth reading through completely, but here are some of the highlights of his argument.

Waldman wrote this summer about the challenges facing our side’s attorneys in getting the tapes released, given that there is no previous case with similar circumstances and thus no precedent for the appeals panel to rely on.  In his piece about yesterday’s hearings, Waldman reflects on the judges’ seeming hesitancy regarding making the recordings public:

Releasing the videotapes — records created by and kept by Judge Walker for his use in chambers — is a good idea, but a tough call on the law. My previous argument noted that, for better or for worse, we usually make public a trial transcript, but do not normally televise or release video of trials; therefore, any motion to do so requires special justification. Releasing the videotapes would be transcript plus, so we would need a sufficient reason for tack on the plus. However, attorneys for the various media outlets supporting release have argued that the Prop 8 proponents have to offer specific reasons why the tapes should not be released, suggesting that keeping the tapes under wraps is a special departure from the norm requiring justifications. The policy arguments favoring release are extraordinarily strong, but that does not mean the law is on our side.

As for the motion to vacate, Waldman points out that the proponents’ argument that Judge Walker should recuse himself because he is in a relationship with a man isn’t just discriminatory, it disregards the tradition of an independent judiciary:

It presumes that judges’ personal views necessarily infect their professional conduct, which not only flies in the face of reason, but contradicts a tenet of Anglo-American law since the Norman invasion.

Check out Waldman’s piece for a much more detailed analysis.  In short, though, he believes the motion to vacate will be denied, the tapes will remain under seal, and (eventually, but hopefully not in the distant future) the 9th Circuit will uphold Judge Walker’s ruling, restoring marriage equality to California.


  • 1. José Merentes  |  December 9, 2011 at 5:41 pm

    And perhaps it´s better for us if they seal the tapes, hence the NOM mob could not in that case accuse the 9th Circuit of bias against "family protectors".

  • 2. Sagesse  |  December 9, 2011 at 8:59 pm


  • 3. grod  |  December 10, 2011 at 8:10 am

    In watching the second section of hearings, I thought a real opportunity to undermine Charles Cooper argument further would have been to point out to the Court that former Chief Judge Walker might or might not wish to marry, but his partner also may or may not wish to do so. Does he need to disclose his partner's desires?
    I was waiting for someone to use Donald Rumsfeld's quote
    "There are known knowns; there are things we know we know.
    We also know there are known unknowns; that is to say we know there are some things we do not know.
    But there are also unknown unknowns – the ones we don't know we don't know." On second thought that would have surely further confused Mr. Cooper.

  • 4. Bay Area John  |  December 14, 2011 at 8:01 am

    this is comment for testing by admin.

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