Posted by: Michael Crowley | January 22, 2010

9th Cir. Loses In Clash of the Titans

The dust has settled and the gods on Mt. Olympus have decreed that we, the public, are not capable of handling the information amassed for and against same-sex marriage, currently being adduced in a lone San Francisco federal courtroom. The five Republican-appointed Supremes dodged the main question on the televising of the civil, bench (no jury) trial by saying the Ninth Circuit (which includes most of the Western states) acted too quickly to allow this experiment to be properly commented on before effecting this radical change.

It was a 5-4 opinion, as has become commonplace with this Court. The Democratic-appointed Justices (with good-old Professor John Paul Stevens, appointed by Republican Gerald Ford thrown in, as he has sided with the so-called liberal wing of the party for several decades now), in the voice of avuncular Justice Steven Breyer (the Republican appointees refused to say who their author was using the per curium designation), called the majority opinion wrong. He pointed out that the court received 138,574 comments on the televising plan. Breyer said “how much more ‘opportunity for comment’ does the Court believe necessary . . .” He said the high Court had no business butting into the Ninth Circuit’s decisions at this point in time.

The dissent also pointed out that the Ninth Circuit Judicial Conference (I once co-chaired the Southern District’s — covering San Diego and Imperial Counties — delegation to this august body) comprised of lawyers and judges voted for the pilot program to allow televised hearings back in 2007. The Ninth Circuit Chief Judge Alex Kozinski, a Ronald Reagan appointee and a bit of a rogue, maverick himself, pointed this out to the head of the Judicial Conference of the United States, a body essentially controlled by Supreme Court Chief Justice John Roberts.

Historically, this issue wasn’t on the Judicial Conference’s radar screen until this highly charged trial came up. When the televising scheme became public, the chair of the Conference’s Executive Committee, Anthony J. Scirica, sent a terse, one-paragraph letter to Kozinski stating the policy of the conference “does not allow courtroom proceedings in civil and criminal trial in district courts to be broadcast, televised, recorded, or photographed for the purpose of public dissemination. . . we ask you to consider the Judicial Conference policy.”

This is how polite judicial talk takes place. When they say “we ask you to consider . . .” there is the implied threat of – or else! Kozinski, who as I said, is somewhat of a maverick, fired back a six-page response stating the pilot project “was developed after considerable deliberation and careful research.” He also cited legal authority seeming to belie the Conference position. He added “the public has demanded greater access to our courtrooms, we have provided it and it has not caused problems.”

Additionally, Kozinski pointed out that there is federal legislation pending that would authorize broadcasting of federal proceedings aptly named the Sunshine in the Courtroom Act of 2009. He finished by saying “Like it or not, we are now well into the Twenty-First Century, and it is up to those of us who lead the federal judiciary to adopt policies that are consistent with the spirit of the times and the advantages given us by new technology. If we do not, Congress will do it for us.”

Regardless, the Supreme gods spoke and vanquished the proposed broadcast of the Prop. 8 gay marriage trial. Perhaps, like a Greek myth, it will soon rise again.

Meanwhile, at the trial this week, San Diego’s Republican mayor testified for the pro gay marriage forces. According to reported account in the San Jose Mercury News (since we can’t watch it ourselves) he gave as strong a statement as his 2008 tearful press conference (with his lesbian daughter at his side) when he announced his switch in position from against to for. Videotape of his emotional press conference was actually played at the trial, according to the Associated Press.

Apparently the San Diego Union-Tribune didn’t see fit to send a reporter to San Francisco as there is no dateline on the U-T story and the tag line states the AP contributed to the article. Interestingly, that when both the police and fire chief testified on behalf of then San Diego City-Councilman Michael Zucchet in the recent “Strippergate” case, it was deserving of both front-page treatment and editorial comment by our local town crier.


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