Ex-judge predicts "spectacular" argument against Prop. 8

Mar 23, 2013 Full story: blog.sfgate.com 187

The now-retired federal judge who struck down California's ban on same-sex marriage has caused a bit of a stir in an e-mail exchange, leaked to a conservative blogger, in which he predicts the lawyer advocating gay marriage rights will present a "spectacular" argument to the Supreme Court.

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“Live and let live”

Since: Apr 08

New Orleans

#1 Mar 23, 2013
Walker should attend if for anything than to show the mettle of the courage he showed in issuing the decision he did. He is a free do do as he pleases now, and most ironically, it might appeal to the Supreme Court to have him there.

Since: Mar 09

Location hidden

#2 Mar 23, 2013
I really REALLY R E A L L Y wish that Walker would keep a very low profile until this is over.

(Somebody PLEASE visit the man with a gag and a roll of duct tape!)

“ WOOF ! ”

Since: Nov 12

Coolidge, AZ

#3 Mar 23, 2013
Josh in New Orleans wrote:
Walker should attend if for anything than to show the mettle of the courage he showed in issuing the decision he did. He is a free do do as he pleases now, and most ironically, it might appeal to the Supreme Court to have him there.
I thank Judge Walker for his decision in tis case, adn I think it was right strictly on constitutioal grounds and not because I'm agu adn wanted to see the case turn out this way.

But I really don't think that the SCOTUS justices would pay him any mind, nor care if he were there.

Interestingly, I saw retired Justice Sandra Day O'Connor on tv about an hour ago. She mentioned that while she was at SCOTUS recently, she heard arguments on a case on which she was a member of the 9th Circuit Court of Appeals.

“Live and let live”

Since: Apr 08

New Orleans

#4 Mar 23, 2013
I don't think the justices are so traditional that if a question about Walker's ruling and him being gay came up, then the court might find it prudent to ask him directly should he be in attendance. I think the reason the Olsen is against it might be because it just highlights the issue even more, but such an act could curry favor.

“ WOOF ! ”

Since: Nov 12

Coolidge, AZ

#5 Mar 23, 2013
Josh in New Orleans wrote:
I don't think the justices are so traditional that if a question about Walker's ruling and him being gay came up, then the court might find it prudent to ask him directly should he be in attendance. I think the reason the Olsen is against it might be because it just highlights the issue even more, but such an act could curry favor.
The SCOTUS justices would NEVER ask ask him anything. That's just not how teh court works. Coincidnetally, Justice O'Connor explained that tonite on a program I saw on tv a few hours ago, because by chancem whe was in attendence listening to arguments in a case she heard when she was on the 9th Circuit Court Of Appeals.

Read a couple of books on the history of SCOTUS and how things work theere today as I have.

“ WOOF ! ”

Since: Nov 12

Coolidge, AZ

#6 Mar 23, 2013
I have always thought that when the meaning of a federal statute is unclear, that the SCOTUS justices should examine the records of congress to determine what they meant. But from what I have read over the years, the SCOTUS justices never do that either.

Since: Aug 11

Location hidden

#7 Mar 23, 2013
I would not expect anything less than a spectacular argument.

“ WOOF ! ”

Since: Nov 12

Coolidge, AZ

#8 Mar 23, 2013
WasteWater wrote:
I would not expect anything less than a spectacular argument.
I certainly don't expect anything "spectacular". What i expect are sound, logical legal arguments firmly grounded in federal constitutional law. Nothing more and nothing less.

“Post-religious”

Since: Apr 08

Location hidden

#9 Mar 23, 2013
Fa-Foxy wrote:
<quoted text>
The SCOTUS justices would NEVER ask ask him anything. That's just not how teh court works. Coincidnetally, Justice O'Connor explained that tonite on a program I saw on tv a few hours ago, because by chancem whe was in attendence listening to arguments in a case she heard when she was on the 9th Circuit Court Of Appeals.
Read a couple of books on the history of SCOTUS and how things work theere today as I have.
At least read something on O'Connor before you spout your usual ignorance. She was never on the US 9th Circuit Court of Appeals. She was nominated for the US Supreme Court from the Arizona Court of Appeals.

“Post-religious”

Since: Apr 08

Location hidden

#10 Mar 23, 2013
Fa-Foxy wrote:
I have always thought that when the meaning of a federal statute is unclear, that the SCOTUS justices should examine the records of congress to determine what they meant. But from what I have read over the years, the SCOTUS justices never do that either.
Scalia doesn't like the use of legislative intent, but that doesn't go for all of the justices on the Court. Many justices have used it throughout history.

Here, read something on it:

"Why Supreme Court Justices Cite Legislative History: An Empirical Investigation"
http://works.bepress.com/cgi/viewcontent.cgi...

“ WOOF ! ”

Since: Nov 12

Coolidge, AZ

#11 Mar 23, 2013
Jerald wrote:
<quoted text>
At least read something on O'Connor before you spout your usual ignorance. She was never on the US 9th Circuit Court of Appeals. She was nominated for the US Supreme Court from the Arizona Court of Appeals.
YOU read something on O'Connor before you spout your usual ignorance. As a retired SCOTUS Justice she DOES sit on the 9th Circuit Court of Appeals part time.

Don't you know ANYTHING ?!

She was speaking on CSPAN tonite about this very thing. Was she LYING ???!!!

You're such a MORON, you can'r even look this up on the web first before spouting your usual nonsense ?! WHAT A DOPE YOU ARE !

http://billingsgazette.com/news/local/crime-a...

“Live and let live”

Since: Apr 08

New Orleans

#12 Mar 23, 2013
Legislative intent has nothing to do with how SCOTUS interprets the law. All that matters is the wording, but even in this case, if legislative intent were an excuse, I'd still prove unconstitutional... Probably easier so than by other means..

“Post-religious”

Since: Apr 08

Location hidden

#13 Mar 23, 2013
Fa-Foxy wrote:
<quoted text>
YOU read something on O'Connor before you spout your usual ignorance. As a retired SCOTUS Justice she DOES sit on the 9th Circuit Court of Appeals part time.
Don't you know ANYTHING ?!
She was speaking on CSPAN tonite about this very thing. Was she LYING ???!!!
You're such a MORON, you can'r even look this up on the web first before spouting your usual nonsense ?! WHAT A DOPE YOU ARE !
http://billingsgazette.com/news/local/crime-a...
My apologies. She sat on a 9th Circuit panel and heard arguments.

She is not "on the 9th Circuit" however. She is retired. She sat in on the case.

"Because she maintains an office, O’Connor said she is required to sit on lower court cases. She has heard a number of cases across the country and several in the 9th Circuit, but this was her first time hearing cases in Montana.

“Post-religious”

Since: Apr 08

Location hidden

#14 Mar 23, 2013
Josh in New Orleans wrote:
Legislative intent has nothing to do with how SCOTUS interprets the law. All that matters is the wording, but even in this case, if legislative intent were an excuse, I'd still prove unconstitutional... Probably easier so than by other means..
The use of legislative history or intent has a long history by justices on the US Supreme Court.

"Moreover, contrary to what some scholars have suggested, we also found no evidence that Justice Scalia has persuaded other justices to refrain from citing legislative history in their own opinions. Rather, the decline in the overall use of legislative history since the mid-1980s reflects a rightward shift in the ideological composition of the Court, as liberal justices who were inclined to cite legislative history have been replaced by conservative justices who are not inclined to do so."
http://works.bepress.com/cgi/viewcontent.cgi...

“Live and let live”

Since: Apr 08

New Orleans

#15 Mar 24, 2013
Jerald wrote:
<quoted text>
The use of legislative history or intent has a long history by justices on the US Supreme Court.
"Moreover, contrary to what some scholars have suggested, we also found no evidence that Justice Scalia has persuaded other justices to refrain from citing legislative history in their own opinions. Rather, the decline in the overall use of legislative history since the mid-1980s reflects a rightward shift in the ideological composition of the Court, as liberal justices who were inclined to cite legislative history have been replaced by conservative justices who are not inclined to do so."
http://works.bepress.com/cgi/viewcontent.cgi...
Exactly, which is why the argument stands so well. Legislative intent would almost make things too easy! Instead, the judges are examining the effect, and wording of the Constitution to determine injury, and the argument in favor of gay marriage is iron-clad.

“Together for 24, legal for 5”

Since: Sep 07

Littleton, NH

#16 Mar 24, 2013
Josh in New Orleans wrote:
<quoted text>
Exactly, which is why the argument stands so well. Legislative intent would almost make things too easy! Instead, the judges are examining the effect, and wording of the Constitution to determine injury, and the argument in favor of gay marriage is iron-clad.
More evidence of the hypocrisy of "originalists.". Given a choice between looking at the legislative record to find out what prompted a law, the justices suppose that theythemselves know both what a legislator meant at the time, and how those same legislators would react to circumstances today.

If originalism or constructionism meant anything other than a justice's belief in his own infallibility, we would see MORE citations of the legislative record, not fewer.

“Together for 24, legal for 5”

Since: Sep 07

Littleton, NH

#17 Mar 24, 2013
snyper wrote:
I really REALLY R E A L L Y wish that Walker would keep a very low profile until this is over.
(Somebody PLEASE visit the man with a gag and a roll of duct tape!)
I don't know how the e-mails got into the hands of people who will grasp at any straw to sully Judge Walker's reputation. But it appears to me he intended to do EXACTLY what you have suggested: keep a low profile regarding the case.

I think it's natural that a judge would be interested in observing Supreme Court proceedings first-hand. The fact that this may be Judge Walker's only cast to be heard by SCOTUS alone may make it of interest. That this is widely regarded as the most important civil rights case in forty years must make the desire to attend irrepressible. Court watchers have already been camped out in front of the Supreme Court for three days to reserve their place in the gallery.[many have never been interested in attending the court before.]. The public interest in the DOMA and Prop 8 cases exceeds that of the Obamacare hearings, a fact which leaves me simultaneously elated by the public's interest and discouraged by it's inability to assess priorities.

So we have a judge who has many legitimate reasons to be interested in the hearings reaching out to a colleague to ask if his presence would be a distraction. In this case, he might well have asked the question of the opposing lawyers if his friend had worked there instead of Olsen's firm.[of course, the question was undoubtedly better-received by the firm who prevailed in Judge Walker's ruling.].

And when the firm responds that Walker's presence would be a distraction, he gracefully steps back, adding a compliment to the attorney. "I'm sure your argument will be spectacular" is both a meaningless throw-away, and a statement of fact. Remember the crowded lined up since Thursday for next Tuesday's hearings? What is your definition of "spectacular?"

Since: Mar 07

The entire US of A

#18 Mar 24, 2013
snyper wrote:
I really REALLY R E A L L Y wish that Walker would keep a very low profile until this is over.
(Somebody PLEASE visit the man with a gag and a roll of duct tape!)
Agreed.

Let's just walk right in to the "activist judge" label, shall we?
OortCloud

Atlanta, GA

#19 Mar 24, 2013
Josh in New Orleans wrote:
<quoted text>
Exactly, which is why the argument stands so well. Legislative intent would almost make things too easy! Instead, the judges are examining the effect, and wording of the Constitution to determine injury, and the argument in favor of gay marriage is iron-clad.
. Although I agree withn you in principle I am fearful that the court will act exactly as it did on Sodomy the first time. This court especially with a majority of catholicsnunder Papal threat for excommunication may not side with the constitution.

“Luke laughs at hypocrites!”

Since: Sep 10

Palm Springs, California

#20 Mar 24, 2013
OortCloud wrote:
<quoted text>. Although I agree withn you in principle I am fearful that the court will act exactly as it did on Sodomy the first time. This court especially with a majority of catholicsnunder Papal threat for excommunication may not side with the constitution.
Oh, my. I am so sad to agree, so much for separation of religion and state.

If up to those tools, we would be a big ol' theocracy.

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