THE VINDICATION OF CHUCK COOPER

by Maggie Gallagher
December 10, 2010

For Charles Cooper, chief litigator for Proposition 8, the ultimate vindication will come when five U.S. Supreme Court justices overturn U.S. District Court Judge Vaughn Walker's decision. Judge Walker is the San Francisco judge who took it upon himself to rule that 7 million Californians had no right to vote for Prop 8 -- gay marriage, he ruled, is required by the U.S. Constitution.

Chuck Cooper 1, Ted Olson 0. That's the only score Cooper cares about.

While Ted Olson and David Boies bask in the glow from fawning media, Cooper has kept a much lower profile.

But on Monday in San Francisco, he received at least a partial vindication of a controversial decision to not present more expert witnesses in Judge Walker's kangaroo court.

For it turns out that the expensive, prolonged and totally unnecessary trial imposed on proponents of Prop 8 by Judge Walker really was ultimately just a show trial -- irrelevant to the issues that will genuinely decide this case.

At the oral arguments before a three-judge panel of the 9th U.S. Circuit Court of Appeals on Monday, Ted Olson and David Boies tried to restrict the rights of these three judges to review the evidence and to decide on the merits of the case. But the appeals court judges are Judge Walker's bosses, and it was clear that the suggestion that they had no authority to review his decision did not sit well.

During oral arguments even the two liberal judges brushed aside Olson's and Boies' assertions that the judges had to abide by Judge Walker's so-called scientific "findings of fact" from the trial, like they were intellectual gnats. "What is marriage?" and "Children need a mom and a dad?" are what judges call "legislative facts," not issues that can be decided at trial.

The most amusing moment was watching appellate judges Stephen Reinhardt and Michael Hawkins get Boies to confess that he and Olson have actively engineered this case to try to prevent judicial oversight by either the 9th Circuit or the Supreme Court.

It was Boies and Olson who asked Judge Walker to issue an injunction against only Alameda and Los Angeles county clerks -- to keep the Imperial County and other clerks from having standing to challenge the law. No other defendant has standing, Boies claimed.

Judge Hawkins nailed Boies on this point: "And the makeup of all the defendants was chosen by plaintiff's counsel, and you chose to name only Alameda and Los Angeles clerks? ... And that was a knowing tactical choice -- it's not that you forgot to name the other 50 or so clerks?"

Yes, Boies had to admit.

A little later Judge Reinhardt chimed in, telling Boies point blank: "It's hard to believe you deliberately only wanted to get a judgment in Alameda and Los Angeles and didn't want to get a judgment that this judge's ruling applied throughout this state."

Then Reinhardt got jovially sarcastic: "It's hard for me to believe that a lawyer of your ability, and fame and whatever else you have -- even if you lost to Mr. Olson (loud guffaws). Nevertheless it's hard for me to believe that."

Judge Reinhardt suggested that Boies could serve the other clerks with notice of the injunction. "That would help us clear up the case," Judge Reinhardt said with a pointed laugh.

And Boies, like a boy with his hand caught in the cookie jar, grinned sheeplishly, paused and then said, "I have to decline that, your Honor."

Olson and Boies, superlawyers and media heroes, who claim to be crushing Cooper in court with arguments that no one can possibly reply to, don't want any appellate judge reviewing their work,

Somewhere, Chuck Cooper is quietly chuckling.

(Maggie Gallagher is the founder of the National Organization for Marriage and has been a syndicated columnist for 14 years.)