Friday, August 12, 2016

Nasty Ed Whelan on Judge Vaughn Walker

Ed Whelan
Ed Whelan writes a daily column for the National Review titled “This Day in Liberal Judicial Activism.” For Friday, August 12, Whelan writes:
2010—In his final act of extraordinary malfeasance in Perry v. Schwarzenegger, Judge Vaughn Walker refuses to stay his judgment against California’s Proposition 8 while the appeal process unfolds. Days later, a Ninth Circuit panel will overturn Walker—the remarkable third major smackdown that Walker will have earned from a reviewing court (twice from the Ninth Circuit, once from the Supreme Court) in this case before his ruling on the merits is even reviewed on appeal.
In the way of background, Whelan (who once clerked for Scalia) is another Defender of the Faith with a lengthy record of anti-gay animus. Most importantly, Whelan was on a Crusade to have Judge Walker removed from the case and then have the decision vacated or reversed because Vaughn Walker is gay. Whelan does not approve of gay people.

Whelan is being dishonest. Walker was not overturned by the Ninth Circuit. Walker chose not to stay his own decision which is hardly uncommon and certainly neither “extraordinary” nor “malfeasance.” The plaintiffs (those opposed to marriage equality) were then required to brief the Ninth Circuit and argue for the stay. The defendants argued against it. Plaintiffs won. That is most certainly not a “smackdown.” Indeed, on the merits the Ninth Circuit ultimately sustained Walker who determined that California's same-sex marriage ban was unconstitutional.

It is worth noting that Judge Walker, in his lengthy decision, also noted that the plaintiffs did not have Article III standing. On that basis the Supreme Court also sustained Judge Walker. In doing so, California's ban on same-sex marriage was nullified on June 26, 2013. “Standing” means the right to sue by virtue of demonstrating a real (not in the abstract or hypothetical) injury. The litigant must then demonstrate that the conduct they are complaining about actually caused the harm. Finally, the remedy sought must be likely to redress the injury if they win the suit.

Whelan will never recover from Obergefell v. Hodges. He has uniformly opposed anything that will protect LGBT citizens from discrimination. He opposed the repeal of DADT and he is opposed to gay couples adopting children. Whelan's “truth” is defined by the eunuchs at the Vatican.

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