National Review Online blogger Ed Whelan was last seen suggesting that Judge Vaughn Walker acted unethically by presiding over the case in which he declared California's ban on same-sex marriage unconstitutional despite being a gay man who is possibly in a long-term relationship. Legal experts pronounced this argument meritless and "ridiculous."
Now Whelan's back at it. He's used the occasion of Walker's announcement that he will resign his position next year to come up with the completely baseless and bizarre theory that Walker may have used the marriage case to “feather his nest.”
Walker's decision to retire is no surprise. Indeed, the buzz from local courtwatchers is that Walker was going to retire last year (when he first became pension-eligible) but changed his mind when the anti-Prop 8 case, through the wonders of supposedly random assignment, fell into his lap.
Applying Ockham's razor, I will readily presume that Walker's wild course of misconduct in the anti-Prop 8 case was driven entirely by his ideological fervor for same-sex marriage and that Walker wasn't also trying to feather his own post-judicial nest. That said, if he were trying to feather his nest, his high-profile invention of a constitutional right to same-sex marriage, including his remarkable (and overturned) denial of a stay of his judgment pending appeal, would be one way to build a lot of goodwill among many prospective San Francisco employers. (On the other hand, anyone who actually read his ruling, and followed his actions, with care would be less than impressed by his legal ability.)
The entire anti-Prop 8 farce would be complete if Walker were to join either Ted Olson's or David Boies's firm. But negotiations could be complicated if Walker were to make a well-deserved request for back pay.
Let's count the baseless theories Whelan packs into these three paragraphs: (1) Walker may have manipulated the random case assignment system; (2) Walker may have decided the case because of “his ideological fervor for same sex marriage”; (3) and last, that perhaps he made his decision not because of “ideological fervor” but to improve his job prospects.
Or maybe Walker decided the case in the way he did because he found the plaintiffs' case that Proposition 8 unconstitutionally discriminated on the basis of sexual orientation legally compelling.