Facepalm Time

You know, I was the first person I know of, way back in February, who pointed out that if Judge Walker of the Proposition 8 trial was gay, this would be a problem.  And Patterico did, too.  And we thought we raised it in a serious, respectful fashion.  So when I went to Law.com in my daily reads and saw an article mentioning that a party seeking to fi    le an amicus had raised the issue, I was like “finally!”

Then I read the thing.  Go ahead read it for yourself.  We’ll let Jesus express my feelings as you do.

Wow, that is literally so bad that it actually hurts the cause.  It distracts from the serious issue.  I said way back in February that I was tempted to file a complaint on my own.  Consider that a looming possibility.

Why Kennedy Probably Won’t Invalidate Proposition 8—A Response to James Taranto

James Taranto today said that he felt that Kennedy was principled enough that he would invalidate Proposition 8.  I have to disagree.

First, Kennedy is not nearly as principled as Taranto imagines.  Yes, he seems reasonably principled in defense of freedom of speech, but in terms of his interpretive methods, not so much.  He joined Scalia’s opinion in Heller v. District of Columbia, which was an intensely originalist decision, determining how the Second Amendment would have been understood at the time it was ratified.  And this was no mere joinder for convenience; in oral argument, he talked about how the founders would have considered life without guns unthinkable.  He put on at least an act of caring what the founders believed.

Then along came Kennedy v. Louisiana.  In that case they were called on to determine whether the term “cruel and unusual punishment” included executing a person for forcibly raping a child.  And with apologies for being this explicit, but the Defendant in that case, also coincidentally named Kennedy, had raped his eight year old daughter so violently that it ruptured the wall between her vagina and her anus and she will never have children.  Read the case and, to Justice Kennedy’s credit, he does nothing to excuse or diminish the cruelty of the act.  So if Justice Kennedy was a principled follower of original intent this would be a no brainer.  At the time of the founding, we executed horse-thieves.  Killing a defendant like this scumbag is nothing compared to that.

But in fact (Justice) Kennedy declared it would be cruel and unusual to kill (Defendant) Kennedy for his crimes.  That decision came only a day before the decision in Heller, leading some of my more sarcastic friends to argue that Heller made Kennedy v. Louisiana moot.

The Judge in the Proposition 8 Trial is Gay, and Yes, That is a Problem

Right now in California they are carrying out a trial to determine whether Proposition 8, which changed the Constitution of California to ban gay marriage, after the California Supreme Court changed the state constitution to allow for gay marriage, is constitutional under the Federal Constitution.  You know, because those evangelical Christians who freed the slaves singing, “Glory, glory, Hallelujah” were live and let live types when it came to homosexuality.  (rolls eyes)

And now we find out that Judge Walker who is ruling over that case is gay.  Is that a problem?  Well Ed Whelan of Bench Memos says that being gay is not itself a problem, saying:

In terms of his judicial performance in the anti-Proposition 8 case, the bottom-line question that matters isn’t whether Walker is straight or gay.  It’s whether he is capable of ruling impartially.  I have no reason to doubt that there are homosexuals who could preside impartially over this case, just as I have no reason to doubt that there are heterosexuals whose bias in favor of, or against, same-sex marriage would unduly skew their handling of the case.

From the outset, Walker’s entire course of conduct in the anti-Prop 8 case has reflected a manifest design to turn the lawsuit into a high-profile, culture-transforming, history-making, Scopes-style show trial of Prop 8’s sponsors.  Consider his series of controversial—and, in many instances, unprecedented—decisions:

He goes on to list many reasons to doubt Judge Walker’s impartiality.  And they are all good reasons—I fully concur with him in that respect.  For instance, the per curium decision by the Supreme Court about cameras in the courtroom made it particularly obvious that Judge Walker had decided to air the case on YouTube and then tried after the fact to justify it.  And that alone should be reason enough for this judge to step aside.

But you know what?  Bluntly, the mere fact he is gay is a problem, too.