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Monday's must-see TV

What C-SPAN's broadcast of Monday's hearing made clear was both the high seriousness of the three judges hearing the case and the nonpartisan quality of their inquiries.

December 07, 2010|Tim Rutten

There are ample reasons to be skeptical about the desirability of cameras in the courtroom, most of them turning on broadcasters' propensity to train their glassy gaze only on the most lurid or sensational trials.

As well founded in experience as those reservations may be, Monday's broadcast of the U.S. 9th Circuit Court of Appeals' hearing in the Proposition 8 case was a powerfully compelling argument for the camera's indispensability when the issues at stake are as broadly consequential and as deeply divisive as they are in the struggle over marriage equality.

What C-SPAN's broadcast of Monday's hearing in San Francisco made clear to anyone watching was both the high seriousness of the three judges hearing the case and the nonpartisan quality of their inquiries of the litigants' attorneys. That's particularly important for two reasons: In this era of historically bitter partisan divisions, there is a tendency to assume that every issue — governmental or cultural — is inevitably politicized. Thus, in the lead-up to this hearing, much of the commentary treated the individual judges' rulings as all but predetermined by their political backgrounds

It was widely assumed, for example, that Stephen R. Reinhardt, a political liberal who was appointed to the federal bench by President Carter, would look for a way to uphold District Judge Vaughn R. Walker's ruling striking down Proposition 8, while Judge N. Randy Smith, a political conservative from Idaho appointed by President George W. Bush, would strain for a way to reverse the lower court. Judge Michael D. Hawkins, a moderate Democrat from Arizona appointed by President Clinton, was the panel's presumptive swing vote.

What viewers saw and heard Monday, however, was anything but that sort of vulgar political kabuki. All three judges asked lawyers on both sides pointed questions about one of the issues before them: whether the parties appealing Walker's ruling have legal standing to bring their case. Reinhardt repeatedly hammered David Boies, the Democrat appellate lawyer defending same-sex marriage, on his view of that question — which, of course, is that they do not. Smith and Reinhardt asked searching questions about whether the refusal of Gov. Arnold Schwarzenegger and Atty. Gen. Jerry Brown to defend Proposition 8 wasn't a backdoor way to nullify "an act of the people" and a subversion of democracy.

Hawkins, the presumptive moderate, asked the most pointed question of Charles Cooper, the lawyer representing the proposition's proponents, when he wondered whether the people of California were democratically entitled to reinstate school segregation.

All three judges grilled the attorneys on both sides about their definition of marriage, the implications of the state's legal recognition of civil partnership and whether the ballot initiative required a rational basis for withdrawing the right of same-sex couples to wed. Repeatedly, Reinhardt — characterized as a "judicial activist" in much of the anticipatory commentary — seemed to be searching for a way to decide the case on very narrow grounds, suggesting that the panel might send the question of standing back to the California Supreme Court for a decision.

When it comes to partisanship and the law, it also was instructive to watch the lawyers in action. Boies and his co-counsel, Theodore Olson, a conservative Republican, were on opposite sides of one of the most politically charged cases to come before the U.S. Supreme Court in recent history — Bush vs. Gore. Both Olson and Cooper, his antagonist in the present case, have served in GOP administrations; Olson as George W. Bush's solicitor general and Cooper as an assistant attorney general and head of the Office of Legal Counsel under Ronald Reagan. Yet there conceptions of the law and individual rights have put them on opposite sides of the marriage equality question.

It is one of the glories of our court system that it continues to permit a principled and civil debate over just such contentious issues, and the American people deserve to see that, as they did Monday.

Another 9th Circuit judge, Alex Kozinski, is among the fiercest judicial advocates of televised court proceedings. When he argues on their behalf, Kozinski, who clerked for Warren E. Burger, often cites a remark by the former chief justice that seems particularly apt in the Proposition 8 case: "People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing."

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