hunter of justice

Prop 8 trial judge argues for broadcasting court proceedings

On Thursday, the Ninth Circuit will hear arguments in the appeal raising the question of whether the videotapes made of last year's Prop 8 trial must be released to the public.

U.S. District Court Judge Vaughn Walker (retired, photo), who arranged for the tapes to be made (and who ruled that Prop 8 failed to pass muster under the U.S. Constitution), spoke recently before the Contra Costa Bar Association on the dynamics of high profile cases. In this YouTube video of the speech, the portions most relevant to the trial in Perry v. Schwarzenegger begin at 24:45, and focus on the relationships between judges and the media in such cases. 

Not surprisingly, given his efforts to have the trial broadcast, Judge Walker is a strong believer in the value of public access to court proceedings, which he argues can be meaningful in the current media environment only by allowing the recording of such proceedings. There is no big revelation here, but Judge Walker makes a poweful argument for allowing any member of the public to observe judicial hearings by electronic means.

The backstory to the Log Cabin Republicans' challenge to DADT

From AmLaw, an interview with Dan Woods, the White & Case commercial litigator who had worked on just one prior pro bono matter:

AMLAW DAILY: Hi, Dan. Congratulations on the big win. First question: How'd you get involved in the case?

WOODS: There was an associate here at White & Case, Martin Meekins, who was actively involved with the Log Cabin Republicans. So back in 2003, we filed an amicus brief in Lawrence v. Texas. After the U.S. Supreme Court ruled in that case and found the Texas anti-sodomy laws unconstitutional, Marty brought up the idea that it might be time to bring a challenge to "Don't Ask, Don't Tell" on constitutional grounds. We did some research and found it was a viable possibility on First Amendment, due process and equal protection grounds. We filed in 2004, and we've been at it ever since. We were in something of uncharted waters. The precedents were all against us.

AMLAW DAILY: Thursday's opinion made clear that the case centered around whether "Don't Ask, Don't Tell" accomplishes anything -- whether it helps unit cohesion in the military or prevents some sort of disunity that would theoretically bubble up if gays could serve openly. The testimony from your military witnesses kept going back to the notion that "Don't Ask, Don't Tell" actually hurts unit cohesion. They all mentioned the fact that they couldn't talk about their private lives, and how that made colleagues distrust them. Did you expect that going in?

WOODS: It really did evolve that way. It was just what these witnesses were saying. They were all from different branches of the military. Some were officers, some not. But they all kept saying the same thing. We had one witness, Tony Loverde, who had flown 61 combat missions in Iraq, and he was saying that when he'd get back from one of those flights he'd have to run away from the people he had just been flying with because he knew they were going to want to talk about what they were going to do over the weekend.

AMLAW DAILY: He was the one fellow soldiers nicknamed "Vapor" because he disappeared all the time, right?

WOODS: Yes, that's him. There was also a lot of testimony that didn't make it into the opinion about how this policy impacted women in particular. There was sexual harassment of women by women happening, and women would be afraid to report it because they feared being outed as gay -- even if they were in fact heterosexual. It was called lesbian-baiting. There were even some women who responded to a survey who said they had sex with men they didn't want to have sex with so they would not be perceived as being lesbians.

AMLAW DAILY: Wow. There's a lot of uncomfortable stuff in this testimony. One witness talks about being called a "faggot," being forced to simulate sexual positions, and even being fed dog food, walked around on a leash and locked in a dog's cage. Were you surprised by some of these revelations?

WOODS: Yes. The emotion in the courtroom when the servicemen testified was unlike anything I've ever seen.

AMLAW DAILY: You had a solid core of both servicemen witnesses and expert witnesses. The government didn't really have any witnesses -- they relied on challenges to standing and the idea that the language of the law was constitutional, regardless of what impact the law had in practice. Were you surprised they didn't put on more of a traditional case?

WOODS: That's very true. They did not put on a case at all. It was a strategic choice. They could have had witnesses testify about why "Don't Ask, Don't Tell" is somehow necessary. I was disappointed they didn't. I was looking forward to cross-examining any witness who might say that.

AMLAW DAILY: It seemed similar in that way to the recent Prop. 8 case in California. The judge there chastised the pro-Prop. 8 side for failing to put on much of a case.

WOODS: There are some parallels there. I think both we and the David Boies/Ted Olson side in the Prop 8 case just tried the case as if it were any other civil case -- like a big contract case or a securities case. We put on as much evidence as we could from lay people and expert witnesses. Just as they had witnesses testifying about what being married would mean to them, we had witnesses talk about their personal experiences in the military.

AMLAW DAILY: And the government wanted that testimony thrown out, right?

WOODS: Oh, my God. I've seen people try to exclude evidence, but I've never seen anything like this. The government filed three motions in limine: one to exclude our documents, one to exclude testimony from lay witnesses and one to exclude testimony from expert witnesses. We would have had nothing left!

AMLAW DAILY: And the judge denied all three of those motions?

WOODS: Yes, she did. And at the end of the case, the government accused us of cherry-picking the best witnesses. And the judge said, Excuse me, isn't that what advocates are supposed to do? Do you want them to put on their weaker witnesses? It's our job to put on a strong case, and the government did not meet that challenge.

Not only that -- they challenged just about everything we tried to introduce at trial. Do you know they would not stipulate to a Tweet from Admiral [Mike] Mullen [chair of the Joint Chiefs of Staff]? They would not stipulate to a Tweet! They fought against the admission of testimony from a Senate hearing at which Mullen testified. It was ridiculous.

AMLAW DAILY: They also expended a lot of energy challenging the standing of the Log Cabin Republicans to act as plaintiffs in the case, right? It seemed like you spent a lot of time trying to prove that your witnesses were members of the Log Cabin group at the time of the filing. Whether or not the witnesses paid dues was actually important evidence. That surprised me, considering the case is about what seem to be some pretty interesting ethical issues, but I suppose standing is a key issue in any case, right?

WOODS: It didn't surprise me. The government has been all over standing issues in every "Don't Ask, Don't Tell" case. It is part of their standard playbook.

AMLAW DAILY: So now you have to file papers requesting an injunction that would bar "Don't Ask, Don't Tell" not just in California but nationwide?

WOODS: That's right. And what we really want to know is: Will the president appeal? Remember, this president has called for the end of "Don't Ask, Don't Tell." During my closing, I called those remarks the greatest party admissions in the history of party admissions. These were the president's prepared remarks! And he made them multiple times!

American Bar Assn adopts gay marriage resolution

The American Bar Association’s 561-member House of Delegates today approved a measure by a voice vote that urges states and territories to eliminate any laws that restrict marriage between gay couples. The ABA's action is another signal of a sea change within the legal profession on lgbt issues.

Incoming ABA President Stephen Zack spoke in favor of the proposed resolution, asking, “Why would anyone in this country not want two people who love each other to enjoy the blessings of marriage and the protections of law?” Former president Tommy Wells also spoke in favor of it.

The resolution was debated for a brief time after past president of the Ohio State Bar Association, Leslie W. Jacobs, objected to the measure and sought a motion to table it. His motion was ruled out of order and the measure was then passed by a voice vote.

The resolution reads

“RESOLVED, That the American Bar Association urges state, territorial, and tribal governments to eliminate all of their legal barriers to civil marriage between two persons of the same sex who are otherwise eligible to marry.”

American Bar Assn to vote on marriage equality

When the annual convention of the American Bar Association convenes next week in San Francisco, one item on the agenda for the House of Delegates will be a vote on Resolution 111, which would put the powerful and prestigious organization on record as supporting equal marriage rights for gay couples. The resolution reads:

RESOLVED, That the American Bar Association urges state, territorial, and tribal governments to eliminate all of their legal barriers to civil marriage between two persons of the same sex who are otherwise eligible to marry.

The resolution is sponsored by the Section on Individual Rights and Responsibilities, together with a number of state and local bar associations and commissions within the ABA. The IRR report with a recommendation for adoption is here.

Dawn Johnsen on whether she regrets not having been more calculating and cautious in her commitments: "Not a chance. Never for a moment. Not on your life."

Dawn Johnsen, whose nomination to be Assistant AG in charge of the powerful Office of Legal Counsel was killed by right-wing opposition, made a wonderful speech at the annual conference of the American Constitution Society yesterday, directing her words to law students and young lawyers who might fear that taking principled progressive positions could haunt them later in their careers:

Make no mistake: I do feel that the nearly unprecedented delay of my nomination was wrong. But as to whether I would have changed my positions or softened my stances, or decided to just sit a few issues out, my message could not be more clear or simple: I have no regrets.

From where Dawn worked as a new lawyer (NARAL) through which topics she chose to focus on as a scholar (among others, her condemnation of the torture memos), she has invested her time and talents in advancing principles that matter deeply. If only there were more like her!

Gay rights and Republican lawyers: l'affaire continues

The Prop 8 trial is expected to end this week, possibly as early as Wednesday. What has been treated in the media as Ted Olson Presents will go on hiatus until final arguments, which Judge Walker has said he wants to hear after he has had a chance to review the evidence. Meanwhile, Olson had a pretty good week back at the Supreme Court, where he was the winning lawyer in Citizens United v. Federal Election Commission, the case that decimated what passed for a campaign finance reform law.

But long before Olson will be before the Supreme Court as a gay rights lawyer, the Justices will hear from the two other high quality and highly paid stars in the conservative lawyer firmament. Hastings Law School has hired Gregory Garre and Maureen Mahoney to defend its anti-discrimination policy against the challenge against it by the Christian Legal Society. CLS asserts that it has an expressive association right to exclude gay students, and Hastings argues that it has a right to deny official recognition if a group is not open to all students. 

Both Garre and Mahoney are, like Olson, superb advocates. But their role in the CLS case, like Olson's in Perry, illustrates the ways in which public interest litigation is becoming less and less distinct from ordinary corporate practice. Big firms (sometimes acting pro bono, although not in Perry or CLS) are being brought in to litigate important and high visibility cases on behalf of the public interest law groups that function as co-counsel or sponsors of the litigation. What's wrong with this picture?  Not anything, necessarily, but it surely marks a radical change from a professional landscape in which the outsider lawyer carried the case all the way through appellate stages, including to the Supreme Court.

Part of the reason is the increasing specialization of legal work, manifest in the growth of a small elite group of Supreme Court practitioners. Part of it is the sharp, almost even split among the Justices along ideological grounds in almost every area of constitutional law. And part of the reason is surely that conservative Justices currently hold the upper hand in that split, thereby creating a special appeal for having a lawyer well known for her or his conservative credentials argue your case. 

In the CLS case, it is easy to see why Hastings chose Garre and Mahoney (both partners at Latham Watkins). Both Garre, who was Solicitor General at the very end of the Bush 43 presidency, and  Mahoney, who successfully represented the University of Michigan Law School in defending its affirmative action policy in Grutter v. Bollinger, are regarded as excellent Supreme Court advocates. Their biographies bear a stunning resemblance to that of Chief Justice Roberts: all were former Rehnquist clerks and appointees in Republican Justice Departments. Mahoney was also a Bush 43 nominee for a federal judgeship, but was not confirmed.

I suppose the irony here is that "hired gun" no longer just means that a lawyer who once sought to do good will represent tobacco companies, investment banks, or big pharma. Apparently, it also means that Republican true believers will represent queers and the people who love them. At least if the price is right.

 

Kendell 2.0 - I felt like I was playing out of position

Kate Kendell reflects on the personal side of the California roller coaster ride for lgbt rights (with apologies for too much camera movement):

Kate Kendell on whither California

At a recent conference, I had a chance to catch up with Kate Kendell, executive director of NCLR (National Center for Lesbian Rights). She's fab as always.  Following is part 1 of our conversation; tomorrow I'll have a video of Matt Coles talking about the future of marriage campaigns, and on Sunday, Kate reflects on what it was like to jump from litigation chief to an electoral campaign in a state the size of a small country.

Window into the organizing strategy behind the Iowa marriage decision

This morning's Washington Post has a great article on the strategy and field work that led to Lambda Legal's victory in the Iowa marriage case. The article provides well-deserved recognition for Camilla Taylor, the Lambda lawyer who was the brains behind the lawsuit, but who got less attention than she should have when the decision was announced because she recruited a prominent local attorney to argue the case in the Iowa Supreme Court and to serve as the public face of the lawsuit.  

The Post article is also important because it illustrates the kind of pre-litigation groundwork that goes into lgbt rights cases. Some critics of litigation, especially gay marriage litigation, argue that it is naive at best, counterproductive at worst, to try to win rights in court, because judicial opinions can trigger a backlash.  It's true that courts are often not the way to go, but it's also true that lgbt rights litigators have understood that for years, if not decades at this point. The response to this political-legal problem is neither to ignore it nor to relinquish litigation as a tool, but to construct lawsuits in the same way that community organizers construct grassroots movements - by years of studying particular jurisdictions, patient outreach, building networks, recruiting allies, and, ultimately, bringing lawsuits. The Iowa litigation is a great example of that process at work.  And no one views Iowa as over: advocates will continue their work there until the risk of politically overturning the decision is effectively ended, as it has in Massachusetts, where GLAD used exactly the same kinds of approaches. (In fact, the GLAD marriage lawsuits quietly invented this strategy.) These lawsuits illustrate what I call multi-dimensional advocacy. True, it can fail as well as succeed, but it has moved the ball far beyond the stale debate over whether courts are the source of rights.

The Post article is after the jump

New book on conservative cause lawyering

The following review in the Law and Politics Book Review describes Ann Southworth’s LAWYERS OF THE RIGHT: PROFESSIONALIZING THE CONSERVATIVE COALITION, published late last year by the University of Chicago Press.  Southworth is a member of the founding faculty at UC-Irvine Law.  The review was written by Joshua Wilson of the Government Department at John Jay College.

...As the title suggests, Southworth looks at issues related to both infrastructure development as well as the “conservative coalition’s” use of litigation as a political tool. The book’s main task, however, is to describe who the various lawyers within the broader conservative coalition are (e.g. where they went to school, their socio-economic status, what motivates their work, and so on), as well as what connects and separates the various groups that these lawyers represent and to which they belong. ....

[The book] delv[es] into the descriptive details that open the “window into the world of lawyers for conservative causes and probes the little discussed cultural conflict among them” (p.1). Southworth begins this section by asking “whether lawyers of the conservative coalition are likely to contribute to mutual understanding and cooperation within the alliance or whether disagreements and dissimilarities among them make them unlikely to build consensus” (p.42). The short answer to this question is that the lawyers, like the constituencies they represent, are divided by social space and policy goals.

Chapters Three and Four use data about law schools attended, practice location and setting, religion, funding sources, motivation, and professional identity to illustrate the social differences between the various groups of lawyers. Chapter Five begins by continuing this demographic data argument by applying generational grouping to the various lawyers, but it also transitions to investigating other potential substantive or issue-based bridges for the gaps exposed thus far. [For example], the disharmonies around the specifics regarding the desire to reshape the Federal bench and other issue-items, as well as the shared “dissatisfaction with what they viewed as the pillars of the liberal legal establishment” were quite compelling (p.116).

Chapter Six is possibly the most interesting in the book. The data from the preceding three chapters expose multiple rifts that lead one to question the usefulness of collectively identifying the groups as being part of a conservative coalition or movement. In the words of one interviewee, “you quickly find out that [conservative public interest law groups] are really autonomous and inward looking. And there’s not a lot of [collaboration]” (p.121). Chapter Six, however, ... provides the support for the claim that these groups are still part of a common movement.

Professional responsibility in AZ: does unbiased representation extend to lgbt clients?

The Alliance Defense Fund is threatening litigation to block a proposed revision to the Arizona Bar Association oath that pledges unbiased representation to LGBT clients. The proposed revision to the oath states: “I will not permit considerations of gender, race, religion, age, nationality, sexual orientation, disability, or social standing to influence my duty of care.”

The ADF, which is based in Arizona and regularly opposes LGBT rights in courts across the country, said it is particularly concerned about the inclusion of “sexual orientation” in the revised oath.

In a letter to bar association president Edward Novak, the ADF and other conservative lawyers said that “the proposed provision is unnecessary, exceedingly ambiguous, and unconstitutional.”

“We are concerned most particularly that the proposed provision’s vagueness violates due-process and free-speech guarantees and that its application infringes First Amendment rights by compelling conduct and expression in conflict with an attorney’s philosophical or religious beliefs as well as his other professional responsibilities. ... [T]he proposed provision, unlike any other part of the Arizona Bar Oath or Ethics Rules, may be interpreted to force an attorney to undertake particular representation.”

The letter calls on Novak to abandon the revision and warns that if it passes it would be challenged in court. It was signed by more than 30 Arizona attorneys.

Source for the above: 365news

This ADF letter is an outrageous attempt to back the Arizona Bar Association down from making explicit what should be basic to any attorney's representation of any client.  Their First Amendment argument is bogus; no attorney with personal objections to same-sex couples, for example, would undertake to represent that couple. The proposed revision speaks of "duty of care," which refers to persons who are already clients, and would do nothing to force attorneys to take particular cases.  ADF surely knows this, just as they know that clergy would never be forced by a same-sex marriage law to marry same-sex couples, another one of their claims in the marriage cases.

There is much talk in the air of mutual respect between lgbt equality advocates and conservative religious believers who oppose equality - some across the board, some essentially only as to marriage. I share the desire for mutually respectful engagement. But I have no interest in giving credibility to those who traffic in cheap lies and sham arguments, of which this latest ADF move is unfortunately only one of many examples.

UPDATE - The National Lesbian and Gay Law Association is in contact with the Arizona Bar, urging them to proceed with the proposed anti-discrimination principle.