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Ninth Circuit Hears Arguments about Vacating Judge Walker’s Ruling, Returning Trial Recordings

The Ninth Circuit hears oral arguments on the motion to dismiss Judge Walker’s ruling, which had been denied by District Court Judge James Ware, who took over the case upon Judge Walker’s retirement.  Judge Ware attends the hearing in person.

The judges appear extremely skeptical of Charles Cooper and the Prop 8 proponents’ argument that Judge Walker’s ruling should be thrown out.  One, Judge Michael Hawkins, asks whether a married judge could not hear a divorce case, likening that to Cooper’s argument.  Another, Judge Stephen Reinhardt, asks if there is any evidence whatsoever that Judge Walker ever desired to marry.  Taking that question one step further, Judge Hawkins points out that Walker did not choose to marry in 2008 when California had marriage equality.  The third member of the panel, Judge N. Randy Smith, says that Judge Ware decided as a matter of fact that there was no reason to question Judge Walker’s impartiality.  He asks how Judge Ware failed in making this determination.  Cooper has no reply.

Speaking on behalf of the plaintiffs, David Boies argues that a judge has no responsibility to disclose something that would not be a basis for recusal, extending that argument to assert that Walker would have no reason to specifically state that he did not want to marry his partner if he had no intention of doing so.  Boies goes on to deliver a powerful endorsement of the American judicial philosophy that judges are presumed to be impartial, regardless of their race, sex or sexual orientation.

The Ninth Circuit also hears oral arguments in the appeal of Judge Ware’s decision to release the Prop 8 trial tapes.  David Thompson, arguing for the proponents, tells the panel that releasing the recordings would make the witnesses who testified in the trial subject to harassment from the public.

Ted Olson, arguing for the plaintiffs, makes the case that there is a strong presumption for access, and that there must be a compelling reason for keeping a trial record under seal.  He argues that placing the tapes in the record makes them subject to the presumption for public access, even though Judge Walker said he would not broadcast them.

The Ninth Circuit panel, however, expresses skepticism in Olson’s argument, focusing more intently on Judge Walker’s statement at trial that he was making the video recording only for his own personal use.  During oral argument, the judges ask whether releasing the tapes would constitute a ‘broadcast,’ which Judge Walker said would not occur, and seem to lean towards keeping the recordings under seal.

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