As you saw earlier today, the Proponents of Proposition 8 filed their reply brief on the subject of whether Judge Walker’s ruling striking down Proposition 8 should be vacated because Judge Walker had a duty to recuse himself. And in response to that reply brief, Bob Egelko published what can best be described as a press release for the Anti-Proposition 8 forces. The bias really is that thick.
Now first readers will recall Mr. Egelko as the reporter (training in the law) whose bias I previously exposed in this post. That post concerned an article that Egelko wrote about Judge Walker finally admitting publicly he was gay, and my email exchange with him. To sum up that long post, I pressed him on the nature of the judge’s relationship, including whether he planned to marry his partner. He wrote at the time:
He spoke some about his partner, but I think it’s a private matter that’s pretty much his business, not ours.
Thus he knew more than he was saying and was refusing to tell because he personally believed it was irrelevant (he states that belief in another part of my post). Now presumably one of the facts he chose to suppress was that Judge Walker had been with his partner for over ten years—more than 8 years when the suit began—which was revealed by Rueters and literally became the basis of the motion to vacate we are discussing now. So he was left in the ethically uncomfortable position of reporting that based on information he thought was too irrelevant to report, the Proponents of Proposition 8 were moving to vacate the ruling. And in that report he compounds his error by allowing others to make specious arguments without contradiction. For instance at one point in the article he includes this passage:
San Francisco City Attorney Dennis Herrera asked, “What’s next? Are they going to say all female judges should recuse themselves from gender discrimination cases?”
This gave readers the impression that their challenge was solely based on his sexuality, when a single quote from their motion would have dispelled that claim: “[i]t is important to emphasize at the outset that we are not suggesting that a gay or lesbian judge could not sit on this case.” I don’t mind Egelko quoting the City Attorney’s misleading swipe at them. I think Mr. Herrera’s bull___ gives us a potentially useful insight into his character. But to leave it uncontradicted is inexcusable. If you quote someone who is lying or misrepresenting the position of another, you have a journalistic duty to correct that falsehood.
Indeed, even when discussing the Proponents’ filings on the subject of the Judge’s unlawful airing of trial footage, he writes:
They argued that Walker had defied a U.S. Supreme Court ruling and violated his own court’s regulations by showing a three-minute excerpt of the trial during a speech in February, shortly before he retired from the bench.
But oddly, Egelko doesn’t mention the allegation that this conduct defied the judge’s own order.
(It’s worth noting, by the way, that Judge Walker is to appear on the issue of the video on the same day the motion to vacate will be considered, and it seems reasonably likely that he might be involved in that hearing, too, if only to be asked questions such as “do you plan to marry your partner?”)
But nothing beats today’s piece, an article that is actually a thin-disguised editorial entitled Did CA same-sex marriage foes undermine own case?
And basically the thesis of the “article” was that the proponents were admitting that a heterosexual judge did not have a “direct and substantial interest” in the outcome of the case, thus opponents of Proposition 8 argue, it cannot be said that heterosexual marriage will be sufficiently harmed by gay marriage to survive Constitutional scrutiny. But bluntly, any second year law student knows that argument is bunk, for they know that in the case law, equal protection analysis is broken down into three tiers: 1) rational basis, 2) intermediate scrutiny and 3) strict scrutiny. The correct standard of scrutiny is rational basis review, which requires nothing more than “a rational means to serve a legitimate end.” The word substantial doesn’t appear until you reach intermediate scrutiny, which applies to gender based classification and classifications based on legitimacy (thus applicable to our President). That standard is that the classification must “serve important governmental objectives and are substantially related to achievement of those objectives.” But that level of scrutiny is not properly applied to classifications based on sexual orientation. And this is basic stuff, learned literally in the first semester of law school. So if Egelko, himself a lawyer, merely recited a little basic law, that would have shown that the Proponents were threading a needle, but nonetheless they were not actually contradicting themselves.
And here’s the really funny part. Later he quotes and paraphrases “ethics expert” Stephen Gillers of New York University as saying:
Even so, Gillers said, an unreported long-term, same-sex relationship should not be grounds for disqualifying a judge. Since Walker could have married his partner in California before Prop. 8 passed, and could marry him today in a number of states, Gillers said, “his decision has no consequence to him.”
Now first, Gillers’ actual views are a little harsher. His blog gives a much more nuanced view that concedes much of the Proponents’ argument for recusal.
And Ed Whelan is correct to note that given that Proposition 8 would have the effect of preventing California from recognizing any out-of-state gay marriage thus creating an interest.
But the most amazing part of that passage is that if Gillers was correct, then the plaintiffs in the case had no standing. So in an entire editorial article telling us how the Proponents had supposedly undermined their case, Egelko himself manages to undermine the Anti-Proposition 8 forces’ case!
Of course that is assuming that Gillers is correct and frankly his argument is ridiculous. Of course the plaintiffs had a sufficient interest to justify standing. If they want to get married they have to leave the state to do it. But for the same reason, Judge Walker clearly had an interest in the outcome of the case.
But hey, Bob Egelko, since you like to consult with “ethics experts,” why don’t you find an expert in journalistic ethics and ask that about your performance here? I bet that person would have an interesting opinion on the subject.
[Posted and authored by Aaron Worthing.]