Ed Whelan has written another article in National Review examining Judge Walker’s behavior in the Perry v. Schwarzenegger trial. No one else in the press seems to be looking closely at what actually happened, how Walker ruled, and the ways in which the spokespeople (including Ted Olson, attorney for the plaintiffs) and the press have subsequently distorted what happened during the trial.
I was originally puzzled by reports indicating that the defense lawyers seemed to mount such an inadequate case, and to say shocking things to the judge such as “you don’t have to have evidence” on the subject of whether the traditional purpose of marriage is procreation, one of the contested issues in the trial. Well, it turns out that “you don’t have to have evidence” was the truncated quote to end all truncated quotes, and the defense lawyers weren’t so stupid after all.
It’s worth reading the whole article. In fact, it’s worth reading everything Whelan has written on the subject. But here’s an excerpt:
In context, it’s clear that Cooper [attorney for the proponents of Proposition 8] cited extensive evidence in the record, as well as relevant legal authorities, in support of the proposition that “responsible procreation is really at the heart of society’s interest in regulating marriage.” Indeed, the evidence that Prop 8 proponents submitted (and cited in their proposed findings of fact) in support of this heretofore obvious and noncontroversial proposition was overwhelming.
When Cooper stated “you don’t have to have evidence for this from these authorities”—Kingsley Davis and Blackstone and the other “eminent authorities” that Cooper was ready to discuss when Walker interrupted—and that the “cases themselves” “recognize this one after another,” it’s crystal-clear in context that he wasn’t contending that he hadn’t provided evidence or that he didn’t need to provide evidence or other authority. He was merely making the legally sound observation that the many cases recognizing the procreative purpose of marriage were an alternative and additional source of authority for the proposition.
But you wouldn’t know any of this from Walker’s highly distorting clip of Cooper’s statement—or from Olson’s contemptible misrepresentation of it, or the media’s mindless parroting of it.
Walker’s outrageous distortion on this point isn’t an aberration. As I will show when I have time, it’s representative of his entire modus operandi throughout his ruling.
The evidence (there’s that word again) mounts that Judge Walker’s rulings in Perry were bizarre and highly unusual. They point to the strong probability of a significant degree of judicial bias and/or incompetence. As for Olson—well, as the plaintiff’s lawyer, we really can’t expect objectivity from him. And then there’s the mainstream press; anyone who’s been paying attention should have given up long ago on expecting them to represent the situation fairly.
Previously a lifelong Democrat, born in New York and living in New England, surrounded by liberals on all sides, I've found myself slowly but surely 
August 18th, 2010 at 4:36 pm
In normal times this story would be an absolute outrage. Nowadays….It’s just more of the rapid fire corruption courtesy of liberals.
August 18th, 2010 at 5:30 pm
Dr. Sanity is back! She has a wonderful essay, BETWEEN BRAINS, describing the destruction wrought when a society makes a fundamental error in ethics. This passage goes a long way to explaining Judge Walker and his ilk:
August 18th, 2010 at 5:39 pm
Walkers guilty of malfeasance in office, he should be immediately removed and if as a federal judge he cannot be removed the system desperately needs changing. They are not Gods and no impartial review of his behavior can fail to conclude that he has betrayed the public trust. Even the Ninth Circuit(!) has now effectively rebuked him, it’s time justice was served.
August 18th, 2010 at 6:07 pm
Walkers guilty of malfeasance in office, he should be immediately removed and if as a federal judge he cannot be removed the system desperately needs changing.
Removing a Federal district court judge would necessitate impeachment and conviction, the Alcee Hastings dipsy-doodle.
At a minimum, he should be censured, ideally by Congress, for abusing his position and giving at least the appearance of impropriety. He really should have recused himself, as he was a party at interest, or could be seen to be such. His failure to do so was inexcusable.
August 18th, 2010 at 6:56 pm
OB,
Then impeach and convict. Make it the very first piece of Congressional business after the mid-terms. Until there are consequences for activist judges willing to eviscerate the Constitution and betray their oath of office, they will feel free to continue to do so.
As a party of interest, he didn’t recuse himself, he’s demonstrated through his behavior a complete and total betrayal of impartiality and the only reason not to impeach is for fear of raising the ire of gays and the left.
They took the ‘gloves off’ and ‘started the ball’, it’s up to us to finish the fight. If we can’t convict because of the current laws, change the laws to hold judges responsible, not for their rulings (people can honestly disagree) but for their behavior.
August 18th, 2010 at 7:39 pm
Code of Conduct for United States Judges
Doesn’t look good, Vaughan. Not good at all.
August 18th, 2010 at 9:31 pm
Judge Walker’s behavior seems fairly normal to me, especially in a country that appears to be trying to institutionalize sodomy as a viable lifestyle and worldview.
[http://en.wikipedia.org/wiki/Psychosis - Psychosis (from the Greek "psyche", for mind/soul, and -?s?? "-osis", for abnormal condition) means abnormal condition of the mind, and is a generic psychiatric term for a mental state often described as involving a "loss of contact with reality". People suffering from psychosis are described as psychotic.
People experiencing psychosis may report hallucinations or delusional beliefs, and may exhibit personality changes and thought disorder. Depending on its severity, this may be accompanied by unusual or bizarre behavior, as well as difficulty with social interaction and impairment in carrying out the daily life activities.]
HOWEVER, if a person were to step away from that particular psychotic paradigm of Judge Walker and enter back into a sane civilization, then perhaps he should be striped of all influence he is able to dictate over society.
ALSO, I find it strange in a country that seems to exercise great extremes attempting to deny the efficacious presence of the Judeo-Christian God they should prostitute themselves to the fickleness of written law. Why should scribbled ‘laws’ by self-actualized apes trump basic common sense?
August 18th, 2010 at 10:03 pm
(An aside – thanks to Matthew M for the heads-up on Dr. Sanity!)
Once again, I go back to the argument that if the State wants to give legal status to same-sex relationships, they MUST come up with a word other than “marriage” to do so. “Marriage” has been understood for centuries as one-man/one-woman. Its definition is set; certain; “carved-in-stone”, if you will. If -God forbid- we let Progressives start revising what words mean, we WILL wind up with new and unpleasant definitions for “legal” and “vote” and “rights”. We WILL wind up in a world where “War is Peace” and “Freedom is Slavery”.
August 18th, 2010 at 11:04 pm
ANM: I have been saying exactly the same thing for years — if we are to grant legal status to same-sex relationships, call it something else. Calling it marriage is like deciding one day to call a dog a car. Some people might like it, but it makes no sense linguistically or any other way.
American did the same thing at the height of the so-called women’s liberation movement by coming up with the title “Ms.” for a woman whose marital status you don’t know or don’t want to convey. We can do it again.
In order to push our position, though, we need an alternative word. I have suggested “farriage,” as in “John and Bruce got farried Saturday.” Much shorter than “John and Bruce established a civil union Saturday.” And less intrusive than “John and Bruce got same-sex married Saturday.”
We also need a term to describe a man’s husband or woman’s wife I think. I’m open to suggestions on these. F
August 18th, 2010 at 11:38 pm
So… like… um… what the hell happened to Ted Olson, anyway????
August 18th, 2010 at 11:39 pm
Exactly. Iron and Helium are both elements in the periodic table, but you can’t call helium iron or vice versa.
August 19th, 2010 at 12:49 am
We also need a term to describe a man’s husband or woman’s wife I think.
This makes a presumption that today’s “husband” isn’t tomorrow’s “wife,” and vice versa.
August 19th, 2010 at 3:36 am
I think Spain decided a few years ago that birth certificates should no longer identify the father and mother, substituting instead parent #1 and parent #2. Walker needs to see a shrink if he can’t see the difference between men and women. We are supposed to be so sensitive to idiots like him, but I’ve seen very little evidence that gay activists bother to try to put themselves in the place of women who go through 9 months of pregnancy. Nor do they talk much about the well-being of children. It is all a manifestation of extreme narcissism.
August 19th, 2010 at 8:16 am
ELC: I’m not sure what happened to Olson, but he is a big champion of same sex marriage. He believes it to be a 14th Amendment issue. I am under the impression he is sincere in his support, rather than just interested in money and selling himself to the highest bidder.
Olson lost his wife on one of the 9/11 airliners; had to be highly traumatic. I also read somewhere (don’t have time to find the link right now) that his new wife is a liberal Democrat. This latter may have had some effect on his viewpoints.
August 19th, 2010 at 8:35 am
neo – that’s what happened even to Barry Goldwater in the latter stages of his career.
August 19th, 2010 at 12:59 pm
It is all a manifestation of extreme narcissism.
expat, precisely. Think Hollywood
scumcelebrities adopting Third World kids as fashion accessories for theirkennelshouseholds.You can imagine the phone conversation:
“Whaddya got there, Third World government official? Ah, gimme a baker’s dozen. Assorted, of course. Yes, please, priority shipping, care of my agent. I need ‘em by the time of my press conference.”
August 19th, 2010 at 1:00 pm
I also read somewhere (don’t have time to find the link right now) that his new wife is a liberal Democrat.
I’m afraid to ask, but is that…uh…”wife-wife” or “sorta wife, by some people’s reckoning?”
August 19th, 2010 at 2:01 pm
Occam’s Beard: wife of the female persuasion.
August 19th, 2010 at 9:25 pm
Occam’s Beard: wife of the female persuasion.
Imagine.
August 20th, 2010 at 12:32 am
[...] neo-neocon » Blog Archive » Judge Walker and the evidence. [...]
August 20th, 2010 at 2:05 am
Read the post from ‘mythusmage’ — it is to laugh. Principled objection is now bigotry, according to him/her.
August 23rd, 2010 at 9:30 pm
…..your twisted rendition fools no one…..there was NO evidence produced by the proponents to back their claim of “social and scientific studies” documenting the harms associated with gay marriage and it was to that fraudulent misrepresentation made by the proponents that Walker was inquiring. While lawyers may argue Blackstone’s legal precepts, those precepts are not cast in stone and do not reflect the changes and evolution described by Walker and premised upon the research and Evidence offered by the plaintiff’s experts. The proponents really missed the thrust of this case…..while the challengers carefully showed the evolution which has occured in marriage, the proponents were quoting a 1750′s English Jurist……really bright argument to make!
August 23rd, 2010 at 10:49 pm
Wayne: It is actually your twisted rendition, although unfortunately that rendition may fool quite a few people. At any rate, this post is not about my rendition, it is about the rendition of Ed Whelan, whose credentials establish his bona fides as a legal authority (although I am relatively certain you will discount them, since he is a conservative).
Moreover, I happen to have worked in the field of social science research, and have a graduate level degree that required me to learn a great deal about it. Social science research is inadequate to the task of proving or disproving what effect same sex marriage has on society, and certainly not enough time has elapsed in any country to have relevant long-term data on the question anyway. For what it’s worth, however (and I don’t think any of the evidence pro or con is worth much), there is evidence (not introduced at trial, as far as I know) that gay marriage does have a negative effect on the institution of marriage in general (see this).
Furthermore, I’m not even against gay marriage. I am for the right of each state to regulate it as it sees fit, and I’ve stated that in other posts on the subject.
August 23rd, 2010 at 11:39 pm
Wayne, any chance that this ruling could affect you personally? Is that even remotely within the realm of possibility?