After reading the Perry v. Schwarzenegger decision and re-reading the decision and reading some other commentary, I am ready to offer my essential take on the public ass kicking handed down by Judge Walker in Perry yesterday.
P1. I have never seen a district court judge write a decision like this.
Weighing in at almost 140 pages, this thing is obsessively detailed. Sure, I've seen judges write passionate opinions, detailed opinions and lengthy opinions, but this, with it's level of minutiae from the trial, the professorial pursuit of the author's train of logic and use of evidence, this takes trial court ruling to a whole new level.
It augurs, quite simply for the fact that the judge clearly expects this to be in front of the U.S. Supreme Court at some point, and he doesn't want anyone misrepresenting what he did in court.
In appellate court, there are really only three main issues on which the judges can rule:
- mistakes in the law, e.g. the judge didn't seem to understand or misapplied the authority he used to decide the case,
- judicial misconduct or miscarriage of justice like inadequate counsel or other violation of the rights of the parties, and
- a novel legal question, such as do the Fifth and Ninth amendments to the Constitution really confer a right of privacy, for the purposes of consenting adults obtaining birth control. (Griswold, 1965)
And remember, this is not a mulligan; they got play the ball where it lies.
Attorneys don't get to go into the appellate court with "new evidence" or a newly discovered legal authority, or some other dramatic bit of Perry Mason lawyering. All they have to appeal from is what happened in the original trial and what's there as part of that record.
This leads to lawyers often going to the appellate panel with: "Well, we just aren't sure what the judge was really thinking when he wrote this...personally we feel he didn't consider a, b, c and only considered d..."
No one is going to be able to say that in our instant case.
Walker carefully, nigh on pathologically, breaks down the trial from the statements of the parties, to the discovery, to the credibility of experts to the law cited and gives a truly blow-by-blow description of the trial and his approach to what happened there are how he reacted to it.
There will be no second guessing of the judge on this one. Oh sure, they'll try, and it will be publicly humiliating for them when they do.
P2. Walker knows his audience
This is where it gets really wonky-cool. Unless you are credulous of the issues and the parties involved, you would have to know that this thing wasn't going to be finalized in the trial court. Neither side was going to walk away from this as the losers saying "well, what the hell, we gave it our best shot... let's get down to The Irish Bank before closing, I'm buying..."
Walker had to know this, moreover, he had to know that this may well become one of those Supreme Court decisions that people end up knowing by name and unfortunately end up misquoting or politically abusing when they get their law on.
His writing is geared, as previously noted, to make sure that no one who reads it can come away not understanding how he came to his decision. Moreover, it puts the appellants in a box, of sorts, not allowing them any kind of wiggle room for trying to twist his ruling into saying something it doesn't.
But here's the best part. Anyone following the Supremes knows that Anthony Kennedy is generally considered the swing vote. Even as Kennedy swears he hates being publicly relegated to that role, his record has been one of a genuine scholarly conservative academic and honest broker who has often broken with his more ideological colleagues and followed the dictates of his own intellect.
Some of Kennedy's greatest hits:
- Lawrence v. Texas, 539 U.S. 558 (2003); Texas law criminalizing homosexuality is unconstitutional.
- Romer v. Evans, 517 U.S. 620 (1996); Law can't prohibit anti-discrimination laws for homosexuals.
- Heller v. Doe, 509 U.S. 312 (1993); Relation to rational interest test for law targeting suspect group.
- Christian Legal Society v. Martinez, 561 U.S. ___ (2010); School can require groups to admit gays.
And in that last one, CLS, Kennedy was the swing concurrence that put it over the top.
Besides pissing off movement conservatives and distinguishing him from the The Dread Judge Roberts, Fat Tony Scalia, Sammy The Gavel Alito and Long John Thomas, what do all these Kennedy opinions have in common?
They are all used, several times, as the legal authority underpinning Walker's decision. Sure, he quotes a lot of case law, but I think if you were to add up all the Supreme Court justices who authored all the opinions he cited, I would bet a crisp new $100 bill that I don't actually own yet, that Anthony Kennedy's name would be the one most often seen, and not by a narrow margin.
Court watchers have been saying for some time now that the 4-4 split on the court (assuming Elena Kagan sides with the progressives on this) is not going to be easily swayed by arguments on either side. The real guy you have to convince here is Anthony Kennedy, and whether he likes that role or not, it is something of which I believe he is keenly aware.
In some ways, I believe this decision is almost a legal memo to Kennedy saying, "all right boss, you got us here, now let's see if you have what it takes to get us all the way home..."
And no one is going to be able to go up in front of Kennedy and say, "well your honor, I don't know if that's really what the trial judge meant when he said that, because the case law he cites..."
Don't be fooled by his understated, almost folksy demeanor. Kennedy will come over that bench and cut a bitch!
P3. Remember that scene from Ghostbusters 2?
Tully: "I don't think it's fair to call my clients criminals, because once I turned into a dog and they helped me..."
Remember the look on the judge's face after that; a mixture of shock, disbelief and the internal struggle of muted rage that, unchecked, would allow one to commit unspeakable acts of violence against the ignorant and unwary?
There is an entire section of the decision, 10 pages, pp 25-35 that is entitled "Credibility Determinations."
Now in legalese, that is a term of art. Experts, when they are deposed before trial go through a whole thing where they lay out there credentials and essentially make a case for why they should be considered an expert on this case and why their opinions should be given weight as actual evidence.
See Kumho Tire v. Carmichael, 526 U.S. 137 (1996), General Electric Co v Joiner, 522 US 136 (1997) and Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) for more on how experts in court get to be experts and how and why their opinions get admitted as evidence.
Well, bad news for the experts testifying for proponents of Prop. 8, like "Family Life Expert" David Blankenhorn.
We'll let Judge Walker make his own point on this one:
Blankenhorn offered opinions on the definition of marriage, the ideal family structure and potential consequences of state recognition of marriage for same-sex couples. None of Blankenhorn’s opinions is reliable.
[...]
Blankenhorn gave absolutely no explanation why manifestations of the deinstitutionalization of marriage would be exacerbated (and not, for example, ameliorated) by the presence of marriage for same-sex couples. His opinion lacks reliability, as there is simply too great an analytical gap between the data and the opinion Blankenhorn proffered.
[...]
Blankenhorn’s opinions are not supported by reliable evidence or methodology and Blankenhorn failed to consider evidence contrary to his view in presenting his testimony. The court therefore finds the opinions of Blankenhorn to be unreliable and entitled to essentially no weight.
His little asshat pal, Claremont-McKenna College Professor Kenneth Miller, an alleged expert on American politics fared no better in his attempt to paint gays and lesbians as a major political force compelling the public to accept their lifestyle:
Plaintiffs cross-examined Miller about his knowledge of the relevant scholarship and data underlying his opinions. Miller admitted that proponents’ counsel provided him with most of the “materials considered” in his expert report.
[...]
Miller explained on redirect that he had reviewed “most” of the materials listed in his expert report and that he “tried to review all of them.” Tr 2697:11-16. Miller testified that he believes initiatives relating to marriage for same-sex couples arise as a check on the courts and do not therefore implicate a fear of the majority imposing its will on the minority.
[...]
The credibility of Miller’s opinions relating to gay and lesbian political power is undermined by his admissions that he: (1) has not focused on lesbian and gay issues in his research or study; (2) has not read many of the sources that would be relevant to forming an opinion regarding the political power of gays and lesbians; (3) has no basis to compare the political power of gays and lesbians to the power of other groups, including African-Americans and women; and (4) could not confirm that he personally identified the vast majority of the sources that he cited in his expert report, see PX0794A. Furthermore, Miller undermined the credibility of his opinions by conceding that gays and lesbians currently face discrimination and that current
discrimination is relevant to a group’s political power.[...]
For the foregoing reasons, the court finds that Miller’s opinions on gay and lesbian political power are entitled to little weight and only to the extent they are amply supported by reliable evidence.
Memo to the movement: Look, you want to just make shit up out of whole cloth to sell to your people, that's your own business. But when you bring that crap into a court of law, it becomes all of our business and you will get your ass handed to you if don't come correct.
In the immortal words of Jim Rome: Have a take, do not suck or you will get run.
Unfortunately for you, you had no real take and you did, in fact, suck with a mighty and most terrible wind and you got run.
That's the thing about the "experts" you hear guys like Rush Limbaugh or Glenn Beck citing. They just make this shit up and then spooge it into the echo chamber where it becomes the received wisdom in a grotesque parody of intellectual rigor and academic review.
And the gomers just swarm all over it like starving dung beetles.
But get these guys in an open court where they don't control the forum, and they fold faster than a deuce-seven off suit at the final table of the World Series of Poker.
They have no game and they get spaced out the airlock everytime.
Endgame:
So if you've read this far, thank you and please, go find something to do outside for a while... this concludes my basic take on the Perry decision and why I feel pretty confident that we are going to see the proper progressive outcome when all this shakes out.
From the level of thinking and detail in Walker's writing to the pathetic weakness of the Prop. 8 proponents' case, to the fact that the decision seemed tailored to bring the Supreme Court's swing vote into line with the trial court, I am optimistic.
I need a drink... talk to you later...
mojo sends
