(For picture details, see my Flickr Page)
Before we can go into too much detail here, we need to get some background. Here are some of the cases mentioned by Olson and Cooper in closing arguments:
Lawrence v. Texas
Romer v. Evans
Bowers v. Hardwick
Loving v. Virginia
If you haven't yet read these cases, I'd suggest doing so, as they form the foundation of our side's arguments. Also, they make live blog reading much clearer.
I'm also not planning on revisiting every word of every argument, as the live blogs do a pretty awesome job of that. Specifically, the blog at Firedoglake seems to have captured more detail than most. If you want to read every word of proceedings, you should go there.
My goal is to give a general overview, and talk about the feel of things as the arguments were proceeding, which I hope will be more interesting to y'all since few (if any) of these live blogs talk a lot about impressions, and I think impressions added a whole lot I wasn't getting when I was reading the live blogs.
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Getting Into the Courtroom - "#12"
I arrived at the court house at 5:05AM, and only had two people in line before me. Two older guys (mid-50s maybe), who were obviously a couple, described the whole trial to me. They had apparently been to every day of the trial, and wove quite a tale. The live blogs do not do the court room justice, they said. Both the adept skill of our side and the converse incompetence of the defense did not really come across in blogs. I was excited to hear it, but didn't fully grasp what they meant until I started watching arguments.
At 6:30 they opened the court building and we started filtering in. It then became clear that our position in line outside had nothing to do with who was going to make it into the court room first. After a couple of new acquaintances and I ran up to the 17th floor, we stepped to the end of a rather short line. The people directly in front of us declared "that's it, you're #13," pointing to the woman who was directly behind me. They then explained that the bailiff had declared to the group that 13 seats were still free in today's court room, so those seats went to the first 13 people in line. I was #12, and the woman behind me was #13. As more folks arrived, the bailiff promptly gave the first 13 of us pieces of blue tape to attach to our chests, and told us to write our numbers down. Several folks arrived behind us, and some persisted in staying, hoping that more seats would be available. As it turned out there ended up being about 25 or so seats available, so I was happy to see the folks directly behind me ended up getting seats as well.
While in line, we were treated to a cast of stars, celebrities (attorney and otherwise), and family members. Rob Reiner and his family were there, as was the Academy award winning writer of Milk (who had apparently done a lot of the fund raising on our side). It was rumored that Brad Pitt had also chipped in quite a bit of money, and that he might show up, but he never did. I was not interested in the garden variety celebrities, though. It was David Boies and Ted Olson that I wanted to see. Rumor in line had it that Olson was giving closing arguments, and I wanted to at least thank him. "I don't remember what David Boies looks like," I lamented to the guy in front of me. "Oh, you'll recognize him because he'll be wearing tennis shoes." I thought it was a joke until a few minutes later I actually recognized him from the TV interviews I had seen. As he got closer I looked down to see his all black Nike Air tennis shoes; yes they were muted black suede, but they were tennis shoes all the way:-) Nearly the last person to arrive was Olson, who walked slowly with a small entourage of assistants. The crowd knew who he was, and as he grew near people standing in the hall parted and made room. It struck me as not unlike the scene in the movie where a president or king walks by, and everyone steps aside to get the hell out of the way. This man was king in this hallway, and everyone seemed to know it. As he stepped past, I said "thank you Ted" as calmly as I could; my voice didn't break but I was a bit nervous. He stopped for a brief second, turned to me and said in a respectful, almost humble voice "You're welcome." And with a smile he turned and continued walking. The guy next to me just said "wow."
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Olson's Arguments
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Ted Olson is an incredibly gifted orator; in the first sentence of his closing arguments I knew why they picked him. Boies is knows as being, perhaps, the best lawyer in the world from cross examination and grilling witnesses. He's a pit bull, and not to be messed with in court. In fact, part of his intimidating manner is due to the fact that he's severely dyslexic, and thus he cannot read notes in court; as a result he memorizes all of the questions, details, and case specifics, often to devastating effect in cross examinations. Olson, in contrast, seems to come across as grandpa. He just explains things as they are, and his command of the facts and cases, though no less precise than Boies', just seems to come across as dad explaining how things are supposed to be.
One of the first things that struck me was that after 1-2 minutes of him talking, Walker did not seem to be interrupting him. The guy next to me even commented on how odd it was. Closing arguments is usually the point where a counsel has trouble getting words in because the judge(s) are always interrupting. It was then that it happened. Olson was talking about the motivations of the defendants.
Walker: "Is not the burden of proof on the prosecution in this case Mr. Olson?"
Olson: "Yes, and we think we have clearly shown that strict scrutiny applies in such a case because..."
And so it went on. Walker would lob a question, and Olson would reply without hesitation. "Yes, that applies because of Lawrence v. Texas," "No, the precedent that appropriate here is XYZ case in 1888." "Here is, I think, where Loving v. Virginia applies." With each verbal thrust, Olson had an answer ready and waiting. It was like watching two masters of their craft. Olson wove a complex tale, but Walker wasn't going to let him get away with any hole in the argument. Like Gandolf and the Balrog, they went back and forth. Walker would ask about Minnesota v. Cloverleaf (a case I've never heard of before), and without so much as a second's pause, Olson had an explanation for how the motivation must not be based on fear. It was remarkable. I now understood why this guy could argue in front of the Supreme Court, and why he won over 75% of the time.
Olson then started playing video clips from the trial to help illustrate his points. First from the defendants, and then from Blankenhorn, one of the two witnesses on the other side. Yes, he was playing testimony from the other side because it was so helpful to our case. In the clip, Blankenhorn was saying America would become more American if it allowed marriage equality.
It was some great theatrical drama. When Olson had finished I was left with a sense of calm. If this guy couldn't convince Walker then no one in the world could. We then broke for lunch and I went downstairs to eat something, anything. I had been up since 4AM, and I had literally had nothing to drink or eat, and it was now 12PM.
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Lunch - The man in tennis shoes shakes my hand
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I made my way down to the cafeteria. Much of the celebrities, including the chief counsels seemed to not be there for the most part. Several new acquaintances and I found ourselves a large table and chatted for much of the hour. We were all in agreement that Olson's closing arguments were stunningly good. I made some joke that none of the attorney's were plebe enough to eat with us commoners, and someone quipped "Oh, no, David Boies is sitting at the table right behind you." I turned around and not 10 feet away, with no table between us was Boies, eating cafeteria food and chatting with one of the women I sat in line with. I was a bit surprised, and extremely nervous. I knew what I wanted to do, but didn't know if I had the cojones.
As my fellow lunchers all got up, our crowd dispersed, and I told folks I would see them up there. I bussed my lunch, and then walked over to the table and stood in front of him for a moment.
"Mr. Boies," I said. Who knows what the poor guy was thinking at that point. He had already stopped talking. "I just wanted to thank you for what you've done."
He stood up and turned toward me, and reached out a hand, "It was an honor," he said, looking me directly in the eyes while he shook my hand. In a slight daze at the awesomeness of it, I made my way back up into the court room.
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Cooper's Arguments -
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I mused to a couple folks sitting around me in the morning that listening to Cooper in the afternoon would be like pulling teeth. Most of them agreed, and how could you not? This guy was going to sit up there and describe, for 2+ hours, why gay people should be treated as an inferior class of citizens under the law. This did not promise to be a fun way to sit and digest lunch. In reality what happened was much closer to popcorn-crunching theater, where you want to watch the bad guy fall on his face over and over again, and he ends up blowing himself up in a much more spectacular way than one might ever imagine. It was the kind of experience that might leave one to say "that was some really good writing," until you realize that it wasn't a rehearsed script, but rather a live slow motion train wreck.
I don't know how to describe Cooper's closing argument without using the phrase colossal fuck up. This man tied himself into argumentative and verbal pretzels so many times that it defied belief. Audience members were laughing out loud and had to silence themselves. Judge Walker himself seems almost dumbstruck at moments because of the inanity of the arguments. the scope of how bad it was does not seem to fully come across in any of the live blogs I've read. One reads the words, but the palpable tension in the air, mostly caused by a desire to laugh out loud, does not fully come across.
At one point when making an argument about how marriage was completely about procreation, but got tied up when Walker asked him to explain how this didn't lead to a country where everyone was tested for fertility when applying for the license.
Cooper: "Oh, that would be some horrible Orwellian nightmare".
Walker: "I understand that, I'm just trying to understand how that doesn't come about if what you're saying is true."
Soon afterward Cooper mentioned how dangerous it is for children to accidentally be born out of wed lock, which was one of the compelling reasons for why the state has a vested interest in protecting "traditional marriage." Even I knew this could be really problematic, since gay people don't have accidental children, and thus are not likely to cause much of a problem in the "accidental kid" department. This exchange was very representative of the whole Cooper closing though. It seemed that his arguments had not been fully thought through, that he was not ready for the thing that awaited him. It was like our side had put Gandolf in front of the Balrog, and their side, in a different strategy entirely, decided to field one of the hobbits. The results were not pretty:
Cooper: "That's the danger, when you have this irresponsible procreation. The state has in interest in purposeful procreation."
Walker: "But certainly needing assistance to procreate is not limited to homosexual couples. Heterosexual couples sometimes need assistance, what's the societal danger there?"
Cooper: "There is none. The main danger comes from irresponsible procreation. Same sex and infertile couple can't procreate naturally, so the danger isn't there..."
He continued with the argument, but the thing that struck me most was that he didn't seem to realize that he just declared that gay couples were actually less dangerous to society than straight couples who were "irresponsibly" procreating.
This was the case for much of the afternoon. Cooper would make an argument that would or would not make sense, and then would get twisted into a pretzel, either by Walker's questions, or by the inconsistencies within the argument itself. The most amusing part though, was that he often didn't seem to notice what was happening. I found myself cheering him on, as I would think "oh, you don't want to make that argument, because then Walker is going to ask you A, B, then C and you'll look like an idiot." Then Walker would ask A, B, and C, and Cooper would look like an idiot. The best interaction of the whole day was similar:
Cooper had continued to cite "case after case," without actually naming any of the cases, and how "history books will show that for millenia..." without mentioning which history books, and Walker became quite flustered.
Walker: "Let's move from the millenia to the three weeks in January. What does the evidence show?"
Cooper: "Responsible procreation is at the heart of society's interest in regulating marriage."
Walker: "Be specific, please‚ what was the evidence, what was the witness.
Cooper: "Kingsley Davis said rearing offspring. Blackstone said there are two great reltiionships in public life: marriage underwritten by civil society. Justice Stevens, in his Bowers dissent, said marriage is critically important."
Walker: "I don't mean to be flip, but Blackstone did not testify, Stevens did not testify, Kingsley Davis did not testify. What evidence is before this court?"
Cooper: "You don't have to have evidence, your honor, Mr Blankenhorn said-"
Walker (cutting him off): "I don't have to have evidence?"
This was when I knew it was all over for Cooper's argument. There's even a great article on this last exchange here. After watching Cooper for five minutes I knew that the longer he talked the better off we were going to be. Alas, he eventually did run out of time, which was too bad, because it was fun to watch.
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Olson's Rebuttal -
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Needless to say Olson's rebuttal was great to watch. My favorite part was when he repeatedly attacked the nonsense arguments of Cooper, and pointed out how many of them were contradictory. He then made comments about evidence, evidence, and more evidence. It seemed clear that he was answering Walker's question of Cooper in a way Cooper never could. "We have brought in expert witness after expert witness to testify about the evidence," and later "We have shown how the evidence proves the state has no compelling interest whatever in excluding gay people from marrying."
I left the court room feeling great. If these arguments, with these lawyers, could not win this case, then nothing could. No matter what happens, 9th Circuit here we come.
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