08.05.10

The Right Attacks Prop 8 Judge

Judge Vaughn Walker was deemed too conservative when he was nominated by Reagan. But now that he’s reversed California’s same-sex marriage ban, conservatives are turning on him with a vengeance.

Judge Vaughn Walker’s decision to declare California’s Proposition 8 unconstitutional Wednesday reignited the culture war over gay rights, spurring celebrations among marriage-equality activists and denunciations by its traditionalist opponents.

But even before the decision was issued, the judge himself was becoming a lightning rod.

Individuals like Judge Vaughn Walker do not fit neatly into partisan narratives.

In a pre-emptive strike, University of Notre Dame law professor Gerard V. Bradley posted a column on FoxNews.com hours before the ruling was issued. The headline read, “Why has the media ignored judge’s possible bias in California’s gay marriage case?” and its text warned,   “Walker’s opinions about marriage and sexual preference could be related to his own homosexuality,” referring to reports in the Los Angeles Times that Judge Walker “attends bar functions with a companion, a physician.”

This combination of a gay-media conspiracy and a liberal judicial activist would seem to step out of central casting. Some conservative commentators could not help but take the bait. A sympathetic post from Cato Institute’s David Boaz pointed out that Chuck Donovan of the Heritage Foundation accused Walker of “extreme judicial activism” and “judicial tyranny” minutes after the decision, while Robert Knight of the Coral Ridge Ministries accused him of supporting “the criminalization of not only Christianity, but of the foundational values of civilization itself.”

Michelle Goldberg: Gay Marriage Win Is Culture War Turning PointBut individuals do not fit neatly into partisan narratives.

In fact, Judge Vaughn Walker is a Republican who was first nominated to the bench by President Ronald Reagan. The unexpected ironies do not stop there. His nomination was stalled in the Senate Judiciary Committee over accusations that Walker was too conservative.

Among his opponents were Nancy Pelosi (who described him as “ insensitive” to gays and the poor), Ted Kennedy and leading gay activist groups at the time. In particular, they took issue with Walker’s legal representation of the National Rifle Association, chemical companies, and the United States Olympic Committee in a lawsuit that blocked the use of the term “Gay Olympics.” A San Francisco lawyer named Mary Dunlap, who faced off against Walker in the “Gay Olympics” case, was quoted in The New York Times in 1988 saying, “I think his lack of compassion and inhumanity and coerciveness certainly disqualify him from consideration for the federal judiciary.”

On the flipside, Walker’s defenders included Ed Meese and Strom Thurmond. The outcry at the time was so considerable that it fell to Reagan’s successor, George H.W. Bush, to re-nominate Walker to the federal bench. At the time, Walker summed up his beliefs by saying, “Lawyers acting in a professional way must divorce himself from personal views.”

His subsequent record suggests an independent mind that is complemented by California Republicans’ libertarian streak. He has, for example, blocked a request for slave-labor reparations against Japanese corporations by World War II POWs while also publicly calling for the legalization of drugs. With regards to his sexuality, Judge Walker seems to have taken what might have in another time been called a Don’t Ask/Don’t Tell approach, neither confirming nor denying, neither highlighting nor hiding. It is, of course, his right to decide which labels he will apply to himself in public or private, or if he wishes to reject all labels as insufficient other than individual and American.

Wednesday’s decision is a milestone in civil rights as the case makes its way to the Supreme Court; the effects are only just beginning to be felt. The transpartisan legal team of conservative Ted Olson and liberal David Boies that is steering the case through the courts should set the tone for transcending reflexive political reactions as we aim for something more thoughtful with an eye toward history’s judgment. If, in the wake of Judge Walker’s decision, he personally becomes even more of a target for criticism from the right, it’s likely to be only a few degrees hotter than the attacks he once took from the left.

John Avlon's new book Wingnuts: How the Lunatic Fringe is Hijacking America is available now by Beast Books both on the Web and in paperback. He is also the author of Independent Nation: How Centrists Can Change American Politics and a CNN contributor. Previously, he served as chief speechwriter for New York City Mayor Rudy Giuliani and was a columnist and associate editor for The New York Sun.