David Boaz preempts the "activist judge" line that has and will continue to be leveled at Judge Vaughn Walker, who ruled that Prop. 8 was unconstitutional yesterday.
In other words, this “liberal San Francisco judge” was recommended by Ed Meese, appointed by Ronald Reagan, and opposed by Alan Cranston, Nancy Pelosi, Edward Kennedy, and the leading gay activist groups. It’s a good thing for for advocates of marriage equality that those forces were only able to block Walker twice.
Why did liberals oppose the Walker nomination? Among other things, in the 1980s Walker represented the International and United States Olympic Committees in an attempt to stop a gay group from holding annual athletic events using the word "olympics" in the title. Gay-rights advocates argued that they were being unfairly singled out, since other groups had used the word in events not sanctioned by the Olympic Committees. Walker was also a member of a "San Francisco Olympic Club" that the aformentioned Sen. Cranston said didn't allow women or minorities. About two decades later, the Republican-nominated Walker, once accused of bias toward gays and lesbians, is the judge who just ruled Prop. 8 unconstitutional on the basis of what you could argue is a very conservative, Madisonian concept -- fundamental rights, such as marriage -- should not be subject to a show of hands. The tyranny of the majority is the danger of direct democracy, which is exactly why America is not a direct democracy.
Walker's story is not merely a tale of partisan hysteria from the left, of course. During the time Walker's nomination was stalled, Republicans demanded to know why Democrats were preventing judicial nominees from getting "up-or-down votes." Today they're busy portraying every moderate liberal Democratic nominee as an enemy of the Republic, slowing the judicial nomination process to an unprecedented crawl. Liberals aren't the only ones who have something to learn from what, in hindsight, looks like a silly partisan battle over Walker's nomination, but I suspect conservatives will draw the opposite lesson -- Walker's ruling shows that Obama's nominees are to be blocked at all costs, lest more Americans have access to fundamental freedoms contrary to conservative religious traditions.
