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Walker At Work: What To Expect

Publication Date: 
January 11, 2010
The Recorder
Dan Levine

Lecturer in Law Thomas Goldstein discusses Chief Judge Vaughn Walker's actions and the importance of creating a factual record in the Prop. 8 trial:

As an epic civil rights trial kicks off today in San Francisco, the ultimate constitutionality of same-sex marriage is perhaps the least important decision Chief Judge Vaughn Walker will make. He won't have the final say on that.

What will matter more are his decisions and actions along the way — the factual findings, evidentiary umpiring and the overall tone and tenor of the proceedings. He is sure to be second-guessed on all those fronts, too: One conservative commentator has already suggested Walker's preference for cameras in the court will turn the federal challenge to Proposition 8 into a circus trial.

Walker's pretrial rulings suggest he wants to create a detailed factual record. Prop 8 supporters are clearly worried about the record he'll create, and the findings of fact that will flow from it. Those will be formidable instruments if the case ultimately reaches the U.S. Supreme Court, and its presumed swing voter, Justice Anthony Kennedy, said Thomas Goldstein, the Akin Gump Strauss Hauer & Feld partner who runs SCOTUSblog.

"Thoughtful appellate courts, and the Supreme Court, will defer to him substantially" on the facts, Goldstein said, adding that two sets of arguments have generally been leveled against same-sex marriage. The first involves practical questions like whether same-sex marriage is unhealthy for children, which could give Californians a constitutionally valid basis on which to forbid the marriages.


"What Vaughn Walker is going to do will be really important to the first [objection], and probably not at all to second," Goldstein said.


Walker has already rebuffed attempts to keep anti-same-sex-marriage experts off the stand, preferring instead to hear their testimony and weigh it. Admitting lots of material into evidence, and then making well-reasoned credibility findings, is much more likely to create a bulletproof record that will stand up on appeal — as opposed to just excluding testimony out of hand, Goldstein said.

"This is not a case where less is more. More is more here," he said.