As I mentioned in an earlier post, lawyer Ted Olson, who mapped the legal strategy, got exactly what he aimed to get out of the U.S. District Court in San Francisco.  Yesterday Judge Vaughn Walker issued an opinion declaring gay marriage to be a fundamental right under the U.S. Constitution.   Many gay activists were skeptical of even filing such a lawsuit, fearful of the legal repercussions if the case was lost.

     Analysis of Judge Walker’s decision is ongoing today, and I’ve offered mine.  However, I want to offer a slightly different analysis here, because I think the probabilities are that the Proposition 8 decision had as much to do with "inside baseball" and relationships between people as it did with the facts and law.

     Let’s examine what Ted Olson, the architect of the legal victory, and Judge Walker have in common: 1) the both were born in Illinois in the early 1940s; 2) they both went to law school in the San Francisco Bay Area (Walker, Stanford; Olson, Berkeley); 3) after law school they both went to work for major California law firms (Walker: Pillsbury, Madison and Sutro; Olson: Gibson, Dunn and Crutcher); 4) they both were appointees in the Reagan Administartion, Walker in a stalled appointment to the bench, (ironically opposed by Nancy Pelosi, over a lawsuit he filed against the "gay Olympics" for what amounts to trademark infringement); and Olson as Assistant Attorney General.   Both appointments would have been handled by the same personnel officials at the Reagan White House;  5) they both received successful appointments in the George H.W. Bush Administration (Walker, Federal Judge; Olson, Solicitor General) meaning their clearance processes were handled by exactly the same White House personnel.

     Olson is well-known for his libertarian leanings.  According to Wired magazine, Walker has libertarian leanings.  As Solicitor General, Olson argued a case against Federal sentencing guidelines.  The San Francisco Chronicle once reported that Walker has an "aversion to harsh sentences for well-educated, well-heeled criminals and in particular, perpetrators of securities fraud."

     I think it is fair to say that there are so many intersections in their personal and professional lives, that Walker and Olson must know each other, perhaps very well, and for all the rest of us know, they have been drinking buddies at some point.

     Now, here is the most important intersection:  Walker, who is publicly gay, is the Chief Judge of the U.S. District Court for the North District of California, which sits in San Francisco.   The Chief Judge sits and hears cases just as a normal judge, however, the Chief judge "rules the roost."   He is the administrative leader of that Court, is understood to participate in the assignment of cases, presides over so called "en banc" session of the court, and manages the court’s affairs.  A Chief Judge has a seven year term.  Walker became Chief Judge on September 1, 2004. 

     I’ve always wondered what really caused Olson’s epiphany to get involved in the gay marriage issue.   I read a great story about it, in either the New Yorker or the Atlantic, one of those East Coast magazines, that said there was a Hollywood connection to it all.  Of course the article didn’t mention anything about a schmousy relationship with any critical Federal judges.  But putting together all the facts, after Proposition 8 passed, Olson would have known Walker, and would have understood he was the Chief Judge in San Francisco and could assign a Federal lawsuit against the initiative to himself if he wanted to.  He would know that Walker was gay.  He would know that his own presence in the courtroom would likely be well-received by what should be his long-term acquaintance, even comrade.   He would know that he might be in a special position to use "inside baseball" to influence the outcome of the case.

     I don’t have any information about illegal and immoral extra-judicial contacts between Walker and Olson and/or anyone acting in their behest.  I’m certainly speculating here.  But my experience in life, law and politics clues me that the Proposition 8 decision in San Francisco was pretty much signed, sealed and delivered when the name "Ted Olson" came into the picture.

This entry was posted on Thursday, August 5th, 2010 at 12:00 am and is filed under Blog Posts.