Legal Pad can’t even imagine the anxiety of going before the state’s Supreme Court, so we’re not saying we'd do so hot ourselves. ... Still, it’s our job to sit in the peanut gallery and do the Tuesday afternoon quarterbacking. So after the jump, we grade the performances of the eight lawyers who argued today's big marriage case before the California Supreme Court. Feel free to back us up, or protest vigorously, in the comments.
Therese Stewart, for the city of San Francisco: B. We’d say Stewart was effective, though a little wonky in her approach — urgent in her advocacy but not really passionate. That’s appropriate for normal appellate arguments, but this isn’t the normal appellate case. (She looked quite passionate later on, though, listening to Mathew Staver argue the opposing side — the camera caught Stewart repeatedly putting her head in her hands behind him.) She had her share of softball questions from the justices, and tougher, more pointed ones.
Shannon Minter, for couples and advocacy groups in favor of same-sex marriage: B. Like Stewart, kinda wonky. But Minter warmed up as his argument went along, giving a very good answer when Justice Ming Chin tried to pin him down on the literal distinctions between marriage and civil unions. On rebuttal, though, Minter seemed less at ease at times, stumbling through another Chin question: Why shouldn’t we leave this to the people to decide?
Michael Maroko, for couples in favor of same-sex marriage: A-. Legal Pad’s gotta be honest — we’d never really heard of this Southern California lawyer before, perhaps because his law partner, Gloria Allred, seems to always put herself out in front of the high profile legal case du jour (see the Scott Peterson trial, the Gwen Araujo trial, the Scott Dyleski trial … but we digress). We liked Maroko's style, though — he seemed to think on his feet, with a good mix of conviction and legal-ness to his arguments.
Waukeen McCoy, for couples in favor of same-sex marriage: C-. McCoy managed to annoy the court in under 20 seconds — and the first seven seconds were just him stating his name. He launched into a speech that told the court its opinion that gay marriage proponents were trying to redefine marriage was incorrect. One of the justices immediately interrupted to ask him where he got his information as to what the court’s opinion was. “From the questions asked?” she helpfully suggested. Yeah, that’s it, McCoy agreed, and also, um, other, um, lower court opinions and, um stuff. He continued to seem flustered by justices’ questions during his presentation.
Christopher Krueger, for the state AG, defending the current ban on same-sex marriage: C. Krueger, like Kenneth Mennemeier, below, really didn’t sound like his heart was in it. The lawyers arguing at the extremes of the issue showed some passion and conviction behind what they were saying. Krueger, on the other hand, went in with the unenviable task of arguing for the status quo without insulting the gay-friendly parts of the AG’s constituency. He sometimes seemed to showcase rather than overcome the discomfort of that position — like when he awkwardly tried to argue, under questioning from Justice Moreno, that there was no animus against gays and lesbians behind the state’s ban on gay marriage.
And when you have Justice Joyce Kennard interrupting your sputtering every 30 seconds to restate the question she doesn't think you're managing to answer, you might wanna just call it a day.
Kenneth Mennemeier, for Gov. Arnold Schwarzenegger, defending the ban: C+. We give him points for calm collectiveness and succinctness, even if he did sometimes sound as detached as a meteorologist. He, like Krueger, seemed to struggle with grilling from the court about why the AG and the governor needed separate counsel. But we appreciate that Mennemeier at least gave a short and sweet answer to that question: The AG suggests the court consider an intermediate level of scrutiny between rational and strict — and the governor doesn’t stand behind that. He just wants the rational-basis test applied.
Glen Lavy, for an advocacy group defending the ban: C-. Before Lavy stood up, at least two or three justices seemed to be dropping clues they'd vote in favor of the gay marriage ban. Yet when he took the podium, none of them seemed to help him out with easy questions. And he got plenty of grilling, like from Chief Justice Ronald George: When Lavy tried arguing a distinction in Perez v. Sharp, saying it had “allowed interracial couples to marry but it didn’t change what marriage was” -- instead, he said, it marked a return to the common-law understanding of marriage --George called that a question of “semantics.”
Then, before Lavy left the podium, the chief justice asked him if he’d care to address the arguments his side had made about how the rearing of children fits into all of this. The way the rest of that exchange went, it was basically as good as George asking, "Oh, hey, before you run out of time, do you wanna open up the child-rearing issue so we can bat you around like a pinata some more? Or what?"
Mathew Staver, for an advocacy group defending the ban: C. Staver thought well on his feet when Chief Justice George pointed to Lawrence v. Texas to suggest that he U.S. Supreme Court had taken a global view of the rights of freedom of association and privacy when it struck down an anti-gay-sodomy law. By analogy, George asked, doesn’t that mean what we are weighing here is the right to marry as opposed to — as your side views it — the creation of a new right for same-sex couples to marry? Staver’s response: Another case could have raised opposite-sex couples engaging in sodomy, so the court was right to define those rights generically in Lawrence.
But later on Staver got forced into a corner: In arguing the state’s interest in regulating marriage, he said there were studies showing that kids do best when raised by their genetic mom and dad. To which George replied, “You mean adoptive parents are not as adept at raising children?” Um … Staver didn’t have a very coherent response to that one. Then, making an argument that tradition should hold some weight, Staver also observed "just by way of illustration" that an atom of sodium and an atom of chlorine combine to make salt. You can't change the definition of that without having consequences, he said. But we ask, what's the consequence? No matter what else you call "salt," (and there are many other salts, actually), Na and Cl will continue to combine just fine. So in our view, Staver failed basic science and basic rhetoric in one deft stroke. Even Justice Chin, who frankly didn’t seem aligned with the pro-gay-marriage faction, subtly zinged Staver when Therese Stewart got up for her rebuttal. Referring to her side's arguments that marriage carries intangible benefits, Chin asked her, “Did Mr. Staver just make your argument for you?”
Though we’re tough graders and don't believe in the curve, at least all the lawyers can take heart in this: It looked as if all of the justices pretty much had their minds made up going in, so any stumbles or scores probably didn’t have that huge an impact on the landmark decision-to-be anyway.
— Some of Callaw.com’s editors
No One cares about your stupid ratings of attorneys. You need to find another profession and maybe get off your ass and give back to the community rather than annoy others.
Posted by: keno | October 11, 2009 at 05:06 PM