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Judge Ware Hears Arguments about Vacating Judge Walker’s Ruling and Releasing Trial Recordings

Judge James Ware hears oral arguments in San Francisco over the motion to vacate Judge Walker’s decision, and announces that he will issue a ruling on the matter shortly.  During arguments, Judge Ware notes that recusal requests are usually directed at the trial judge, and not at his or her successor.  Charles Cooper, the lawyer for the proponents of Prop 8, says that a judge should recuse him or herself if he or she has any interest in the outcome of the case.  Judge Ware raises the question of whether a black judge would need to recuse him or herself from a civil rights case.  Cooper says no.

Judge Ware also asks Cooper whether the proper metric in the case should be whether or not Judge Walker had ever expressed any desire to marry his partner.  In his answer, Cooper acknowledges that not all long-term relationships lead inevitably to marriage, and that there is no demonstrable proof that Walker desired to marry.

Arguing for AFER, the organization representing the plaintiffs challenging Prop 8, Ted Boutrous tells the court that Cooper’s argument essentially claims that any gay couple in a long-term relationship must want to get married, and that the court can assume Judge Walker desired to marry, even though he never explicitly expressed such a desire.  He argues that the proponents of Prop 8, who already knew that Judge Walker was gay when the case began (the Los Angeles Times had mentioned the fact in its reporting on the case), chose not to make his sexuality an issue until the Ninth Circuit challenged them on the issue of standing, and their likelihood of success on appeal began to look slimmer.

Judge Ware also hears oral arguments regarding the release of the trial recordings.  Charles Cooper argues that Judge Walker promised the parties the recordings of the trial would be only for his own use, and says that Judge Walker should return them to the court.  Judge Ware disputes Cooper’s recollection of the promise made at trial, saying that it was not a blanket assurance that Judge Walker would never show any portion of the tapes.  He tells the parties that he plans to deny the motion to order Judge Walker to return the tapes, and tells the two sides that he will issue a decision within 24 hours.

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