Never a good sign when a judge walks off the bench while a lawyer is in mid-sentence.
Yet, Orrick Herrington & Sutcliffe partner Stephen Bomse should have been too surprised by Chief Judge Vaughn Walker’s exit Tuesday: Walker had been hammering Bomse throughout a hearing on whether groups like the ACLU would have to turn over documents to the proponents of Prop 8.
This discovery mess – which threatens to delay a final Walker ruling on the constitutionality of Prop 8 – commenced in January, when the Ninth Circuit forced Yes on 8 to turn over some of its campaign materials.
Making good on an earlier threat (free reg. req.), Yes on 8 in turn subpoenaed documents from various groups that fought the anti-gay marriage amendment. Magistrate Judge Joseph Spero turned down attempts by those No groups to kill the subpoenae, and ordered them to start producing documents.
The No forces, led by Bomse, asked Walker to overrule Spero. But Walker immediately cut Bomse off, telling him the standard to reverse was clear error. The ACLU has not come up with a fresh reason to attack Spero’s reasoning, Walker said. “You haven’t submitted anything,” Walker said.
The hearing lasted about an hour and a half, during which Walker appeared completely unsympathetic to the No arguments. At the end, Bomse tried to pick up on a point made by the plaintiffs’ attorney, Christopher Dusseault of Gibson Dunn & Crutcher, that the Yes lawyers had gotten stuff before trial but made a strategic decision not to put them in the record. “All the public documents were produced, and they made no use of them,” Bomse said.
Then, as Bomse began his next sentence, he was hit a with “Thank you very much” from Walker as the judge strode off the bench. Bomse remained at the lectern for a second before turning back collect his things.
Beyond the discovery arguments themselves, I can imagine a few meta-motivations fueling Walker’s irritation. First, there is the delay: Walker wants the trial over, like, yesterday, but these discovery issues may put off closing arguments for a while. What Walker regards as a frivolous appeal to Spero’s order doesn’t help.
Also, Walker has been trying to build a full record, the better to withstand appellate review. So kicking around the No side in an attempt to complete the evidence can’t hurt his credibility with the nine wise men and women in Washington D.C. – at least any more than the camera fiasco (free reg. req.) already did.