Ed Whelan at the NRO Bench Memos provides the best analysis of Judge Walker’s overreach in his overturn of Prop 8. Today, Ed discusses the significance of the Ninth Circuit’s Stay order in the case. In case you missed the news, Judge Walker had originally ordered that same sex marriages begin immediately. The Proponents of Prop 8 asked him for a “stay,” until the appeals process is completed. Judge Walker issued a stay for 6 days. When the Proponents appealled that decision, the Ninth Circuit agreed with them, and ordered a stay, and expedited the case. Oral arguments will begin the week of December 6th.
Here is some of what Ed has to say:
The Ninth Circuit’s grant of a stay of Judge Walker’s judgment pending appeal provides yet further compelling evidence that Walker has gone utterly bonkers in his egregious mishandling of this case. Walker’s denial of the stay threatened to dramatically alter the status quo before a higher court could even review his radical ruling. Walker must have been thoroughly intoxicated by his own bias to imagine that his denial would stand. …
To any objective observer, Walker has discredited himself by his manifest bias. However the reviewing courts ultimately decide this case, I think it’s highly unlikely that Walker’s wild legal analysis or his crazed purported findings will advance his cause—and far more likely that they will do the opposite. The primary effect of Walker’s gratuitous resort to a trial has been to delay the ultimate outcome of this case by a year or so….
Walker’s reversals also call into question the judgment of the supposed dream team of plaintiffs’ lawyers, Ted Olson and David Boies. When a litigator knows that a trial judge is overeager to do his bidding, it certainly must be tempting to exploit that opportunity to the fullest. Far from resisting that temptation and keeping appellate review in mind, Olson and Boies have repeatedly egged Walker on. A year later, and with millions of dollars of attorney’s fees expended, what have they really accomplished for their clients?