At today's hearing on whether to release the Prop. 8 trial recordings, federal Judge James Ware noted that on his way into the building this morning he saw a woman holding a sign that read "Free the Tapes."
That elicited giggles in the courtroom (the woman later showed up to a post-hearing press conference with her now-famous sign) but Judge Ware used it to underscore the legal question he's facing: Whether to lift the protective order that trial-court Judge Vaughn Walker placed on the trial tapes. Lifting it might make the public happy, he noted. But "I am concerned about the integrity of the court and the judicial process."
Judge Ware said, "I generally think it's a good thing" to allow the media more access to the courts. But he also hesitated to lift another judge's order -- an order Yes on 8. Attorneys said was an "ironclad guarantee" that the trial tapes would never be broadcast.
"These are not state secrets," said No on 8 attorney Theodore Boutrous. "They are not radioactive materials. It's just a record of what happened in this courtroom" and the public should get to see them.
Judge Ware promised to make a decision quickly. But Yes on 8 attorney David Thompson asked for an immediate stay on Ware's decision should he lift the protective order. Once again with this issue, the end is really just another beginning.
Next week is the main event: Tuesday the California Supreme Court -- presumably with newly sworn-in justice Goodwin Liu -- will hear oral arguments over whether Prop. 8 sponsors have legal standing to challenge the decision striking down their ballot measure.
If they lose that legal round, backers of Prop. 8 will be very nearly out of rabbits to pull out of the hat as the 9th Circuit will almost certainly let Judge Walker's decision stand.