Ed Whelan has blogged an update on the latest twist in the court case that poses a federal challenge to the California state marriage amendment. He makes the argument that Judge Walker has been impartial and prejudiced in favor of the SSM campaign and that this ought to compel the Judge to recuse himself from the case.
It turns out that the U.S. District Court for the Northern District of California won’t accept public comments on Judge Walker’s New Year’s Eve notice other than by mail. So that means that any member of the public who wasn’t monitoring the court’s website on New Year’s Eve and who has learned only today of the notice had better draft his comments quickly and get them in the mail soon (or pay hefty overnight charges) if he wants them to arrive by the deadline of this coming Friday, January 8. What a farcical implementation of the notice-and-public-comment requirements of 28 U.S.C. § 2071(b).
"Fortunately, I’ve found time to compose my own comments on Judge Walker’s notice. Below is the body of the letter that I’m sending today to Judge Walker."
Here are snippets from the Whelan's letter "Dear Chief Judge Walker:"
First, you violated federal law by purporting, on December 22, 2009, to amend Local Rule 77-3 without having provided the requisite notice and comment period under 28 U.S.C. § 2071(b). Then, when your violation of law was discovered, you rushed to post a notice on New Year’s Eve that establishes a ridiculously short period for public comment — ending the Friday before the trial is set to begin. The short period that you established defeats the purpose of section 2071(b).
The substance of your proposed rule, insofar as it is crafted to enable it to apply to Perry v. Schwarzenegger, is indefensible. The longstanding policy of the Judicial Conference of the United States opposes all broadcasting of civil and criminal cases in federal district courts. The concerns that animate that policy—including the threat of intimidation of witnesses and litigants—are especially present in the Perry case, as the December 28, 2009, letter from counsel for Defendant-Intervenors makes clear.
[...]
If you proceed to rubber-stamp the proposed revision to Rule 77-3 in order to enable televised coverage of Perry, I respectfully submit that your reckless and prejudicial course of conduct on this matter will have clearly demonstrated that your “impartiality might reasonably be questioned” within the meaning of the judicial-disqualification law, 28 U.S.C. § 455(a), and that you will then be obligated to disqualify yourself from further participation in Perry. Indeed, I invite you to examine dispassionately whether you are already required to disqualify yourself.
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Whelan also lists three questions that ought to be used in the selection of cases for broadcasting under a pilot program. These cover the minimum criteria for selection. His assessment is that, "Only in cases in which the answer to all three questions is NO would it make sense to consider further the possibility of participation in the pilot program. By contrast, in Perry, the answer to all three questions is YES."
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