... David Boise and Ted Olson, super-lawyers with an unbeatable case ... fought hard to prevent any higher court from reviewing their own or Judge Walker's work.
...
Maggie Gallagher ... raise[d] that point in her syndicated column this week, "The Vindication of Chuck Cooper":
The most amusing moment was watching appellate judges Stephen Reinhardt and Michael Hawkins get Boies to confess that he and Olson have actively engineered this case to try to prevent judicial oversight by either the 9th Circuit or the Supreme Court.
It was Boies and Olson who asked Judge Walker to issue an injunction against only Alameda and Los Angeles county clerks -- to keep the Imperial County and other clerks from having standing to challenge the law. No other defendant has standing, Boies claimed.
Judge Hawkins nailed Boies on this point: "And the makeup of all the defendants was chosen by plaintiff's counsel, and you chose to name only Alameda and Los Angeles clerks? ... And that was a knowing tactical choice -- it's not that you forgot to name the other 50 or so clerks?"
Yes, Boies had to admit.
A bit later Judge Reinhardt chimed in, telling Boise:
"It's hard to believe you deliberately only wanted to get a judgment in Alameda and Los Angeles and didn't want to get a judgment that this judge's ruling applied throughout this state."
Then he applied a little shaming humor:
"It's hard for me to believe that a lawyer of your ability, and fame and whatever else you have -- even if you lost to Mr. Olson (loud guffaws). Nevertheless it's hard for me to believe that."
At the very end of the oral arguments Judge Reinhardt returned to the theme that Boies and Olson were deliberately trying to manipulate the process so that review of the decision would be harder, as Maggie pointed out:
Judge Reinhardt suggested that Boies could serve the other clerks with notice of the injunction. "That would help us clear up the case," Judge Reinhardt said with a pointed laugh.
And Boies, like a boy with his hand caught in the cookie jar, grinned sheepishly, paused and then said, "I have to decline that, your Honor."
Olson and Boies, superlawyers and media heroes, who claim to be crushing Cooper in court with arguments that no one can possibly reply to, don't want any appellate judge reviewing their work.
As Maggie concludes, "Somewhere, Chuck Cooper is quietly chuckling."
Brian Brown of NOM continues his report: I read Maggie's column on Real Clear Politics yesterday. But this morning I noticed that Maggie isn't literally the ONLY one to notice this exchange. Cornell Law Prof. Michael Dorf, who is pro-gay-marriage, noted the same thing in a note posted on Thursday:
"For me the most tantalizing moment during the discussion of the procedural issues came when Judge Reinhardt almost asked the following question: Why didn't the plaintiffs sue all of the county clerks? Boies acknowledged that this was an option. Reinhardt said that in light of the high level of competence of Boies and Olson, this could not have been an inadvertent oversight."
Then Prof. Dorf makes a fascinating analogy to a famous case David Boies lost, Bush v. Gore, in which the Supreme Court intervened to prevent the Florida Supreme Court from cherry-picking counties in which to recount votes:
"In attempting to cherry-pick counties for recounting, the Gore team--including Boies--ceded much of the moral high ground. They could no longer argue credibly that they simply wanted an accurate count. ...Fast forward to the Boies/Olson strategy of only suing two county Clerks. Could this have been a similar tactical choice right from the beginning, aimed at engineering precisely the situation we now have, in which a district court ruling of nominally limited scope ends up being both effective statewide and unreviewable on the merits? If so, I've got to say that this strikes me as too clever by half."
He concludes with this observation: "in apparently manipulating the procedural doctrines for advantage, they sacrifice at least some of that moral high ground, making themselves look no less the cautious schemers than the organizations whose warnings they ignored in filing suit when and how they did."
"Cautious schemers" Boies and Olson may be playing well in the press, but the serious lawyers have serious qualms about their performance.
Now I know many who watched are frustrated that the full case for marriage was not presented in oral arguments. That's for two reasons. First, because oral arguments are controlled by judges--in this case two very liberal judges--and focus on the arguments which interest the judges. But it's also partly because at this point Chuck Cooper really has an audience of one: Justice Anthony Kennedy. It's all about adding the fifth vote at the Supreme Court to the four solid conservative justices.
Because Olson and Boies are fighting so hard to prevent review, legal analysts are now saying it may be a long slog to the Supreme Court.
(BTW, people who are inclined to gloat--not saying that's me!--might take a perverse delight in hearing that, in an unrelated case, a sanctions motions charging "egregious misconduct" has been filed against Boies's law firm. You can read more here.).
If you were watching with us that day you might have noticed Dr. Jennifer Roback Morse there in the courtroom, wearing a rainbow scarf!
"Yes, I wore a rainbow-colored scarf," she writes in the Ruth Institute newsletter. "I intend to reclaim the rainbow!" After all, "the rainbow is a Biblical symbol of God's covenant with the entire human race, placed in the heavens after the Great Flood in Noah's time. The rainbow is a symbol of God's promise never to destroy the entire earth again, regardless of human infidelity and sinfulness."
After the trial ended she headed over to Vallejo, where an African-American church is organizing local parents to defeat the ACLU's efforts to prevent parents from opting out of a curriculum that includes "That's a Family!", a film designed to teach people that marriage doesn't really matter, and it certainly doesn't matter whether children have a mom and a dad, because all family forms are the same.
She noticed something I hadn't: "It was Prop 8 that brought these people together."
And speaking of all the colors of the rainbow, she says, that was the real rainbow crowd: "I attended a meeting at an African-American church up here in the Bay Area last evening. This group of parents included people of many races and Christian denominations."
As I read about their courageous fight to control their own kids' education, Mayor Gavin Newsom's famous last words were ringing in my ears. "Whether you like it or not"--that's the mantra of the gay marriage movement. ..
More good news from New York: After all the votes were counted in a close race, it looks like pro-gay-marriage incumbent Craig Johnson lost, meaning control of the state Senate will turn from Democrats to Republicans. Along with the abject failure of gay rights groups to defeat pro-marriage Democrats like Sen. Ruben Diaz, it looks like the possibility for a renewed gay marriage fight in New York just went down. We are monitoring that question closely.
On the less good news front, the Washington Post is reporting that a push to pass gay marriage in Maryland is "likely" next year. Stay tuned.
In Iowa, Gov. Terry Branstad sharply criticized Democratic leaders for saying they intend to block a vote on a marriage amendment next year. He said the state's top Democrat, Sen. Mike Gronstal, is being "dictatorial" for singlehandedly blocking the voters' will, according to a Dec. 7 Iowa City Press-Citizen story.
Gov. Branstad affirmed what Iowans know but the mainstream press has ignored:
Democrats "had already paid a price for opposing efforts to let the public vote on a gay marriage ban."
How did Sen. Robert Dvorsky, D-Coralville respond to Branstad's charge that Gronstal is behaving dictatorially--a one-man roadblock opposing the people's will? He said, "Shut up and do what Gronstal says."
Okay, he didn't say that exactly. What he said was: "Sen. Gronstal said we're not going to bring it up." He added, "I'm not sure what the governor-elect is trying to do other than score political points."
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