Federal Judge Vaughn Walker

California federal courtroom for the first time.

Less than four weeks ago, the Ninth Circuit Court of Appeals determined that it was time to begin a pilot project exploring the benefits of broadcasting federal civil trials.   It is somewhat remarkable that the long-protected privacy of California federal courtrooms would become negotiable just weeks before the start of the Proposition 8 discrimination trial.   The Ninth Circuit’s “pilot project” immediately opened the door for Federal Judge Vaughn Walker to take extraordinary legal steps, on New Year’s Eve no less,  to extend the project to include the discrimination suit against Protect Marriage.  With every day, the prosecution of Protect Marriage seems to be led, not just by formidable constitutional attorneys David Boies and Ted Olson, but by Judge Walker as well.  An outraged National Review Online columnist, Ed Whelan, notes that by waiting until New Year’s Eve to make procedural moves to broadcast the Proposition 8 discrimination trial, Judge Walker essentially precluded the public from having any opportunity to oppose it.  In a letter written directly to the Judge, Whelan publicly challenges the motives behind the move:

“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.

I will not address here the curious announcement on December 17, 2009, of the Ninth Circuit’s pilot program.  Suffice it to say that the selection of cases for a pilot program ought to involve, at a minimum, addressing the following questions:

1.  Does any party object to televised proceedings?

2.  Is there any reason to believe that televised proceedings might increase the risk that trial participants would face intimidation, harassment, or abuse?

3.  Is there any reason to believe that that televised proceedings might create a risk that trial participants, including the judge, would engage in grandstanding behavior?

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.

I am aware that a coalition of media companies has asked you to have Perry televised because “televising this modern-day Scopes trial would present viewers with a national civics lesson on a hotly contested issue that crosses social, political, educational, and religious boundaries.”  But the role of the courts is not to “present viewers with a national civics lesson.”  It’s to decide cases fairly.  In some cases, that goal might be jeopardized by televising the proceedings.  But in other cases it will be.  The very fact that these media companies are intent on portraying the case as a “modern-day Scopes trial” reinforces the ample evidence that this trial should not be televised.  If you persist in failing to recognize that elementary fact, the national civics lesson that you will be providing is yet another reminder that too many of our federal judges willfully abuse their authority in order to advance their own political agendas.

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.”

Ed Whelan writes, what everyone is thinking.

Read more here as the National Review Online examines the strategy behind the federal court challenge of Prop 8.

Anyone with a television set in 1994 remembers the televised circus that was the O.J. Simpson trial.  Judge Ito’s courtroom became a circus and the trial a judicial farce.   Indeed, the public is fascinated with law and order. It is also true that some events in our society really do not bear the intrusion of video cameras.  Truth was distorted in the O.J. Simpson case, and certainly the majority of Americans feel the outcome was dreadfully impacted.

Even if the famous Bush vs. Gore Supreme Court case in 2000, where the outcome of a presidential election and the interests of every American was at stake, only audio broadcasts were allowed of the proceedings.

The Supreme Court, with Justice Steven Breyer dissenting, has for the present, protected the proceedings from becoming an even bigger media frenzy.

“We are headed toward the moment when screeners will watch watch-listers sashay through while we have to come to the airport in hospital gowns, flapping open in the back.”

–Maureen Dowd, in her New York Times column today, “As the Nation’s Pulse Races, Obama Can’t Seem to Find His.”  Ed Morrissey wonders whether Obama “has lost Maureen Dowd.”  Read the whole thing. (HT:  Instapundit.)

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