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August 27, 2014 6:25 PM   Subscribe

What's better than reading a judge ruthlessly dismantling arguments against marriage equality? Hearing the judge's own voice as he makes lawyers arguing for Indiana's and Wisconsin's bans on same-sex marriage look like fools. Previously.
posted by ogooglebar (97 comments total) 78 users marked this as a favorite

 
It seems that a conservative who bases his opinions on facts, logic, and compassion is difficult to distinguish from a liberal.
posted by TedW at 6:39 PM on August 27 [93 favorites]


It's a shame Posner was never nominated to the supreme court to replace O'Connor instead of Alito, he would have been a great addition. See also The GOP Has Made Me Less Conservative
posted by readery at 6:45 PM on August 27 [6 favorites]




I'm only two minutes into the first audiofile and I want to give that judge a big ol' kiss on the cheek.
posted by mudpuppie at 6:56 PM on August 27 [8 favorites]


Two thumbs up.
posted by vitabellosi at 6:59 PM on August 27 [2 favorites]


My God, it's full of LOL.
posted by localroger at 7:00 PM on August 27 [4 favorites]


Now I'm two minutes into the second file and I just want him to follow me around every day for the rest of my life and win my arguments because this man makes more sense than anyone else who has ever tried to make sense about anything and I love him.
posted by mudpuppie at 7:00 PM on August 27 [24 favorites]


I love how calm and measured the judge sounds and how nervous and stammering the anti-marriage lawyer is trying to come up with a response.
posted by downtohisturtles at 7:02 PM on August 27 [5 favorites]


And by the way... [all quotes, I've been reading about him]

[Posner] was identified by The Journal of Legal Studies as the most cited legal scholar of the 20th century.

Posner is the author of nearly 40 books on jurisprudence, economics, and several other topics...

He taught at Stanford six years after getting getting his degree from Harvard where he was first in his class and president of the Harvard Law Review.

And, heh, he was nominated by Reagan.
posted by vapidave at 7:04 PM on August 27 [18 favorites]


Judge Posner: "You let all these sterile people get married. Why are you doing that if you're so concerned with... If you're so concerned with [chuckles] 'procreation.' Why do you let them get married?"

Lawyer Dinkmuffin: "We couldn't constitutionally inquire of everybody."

Posner: "It's ridiculous if you don't mind my saying so."
posted by mudpuppie at 7:07 PM on August 27 [13 favorites]


(Indulge me. I've had a hard day.)

Posner: "Is there some empirical basis for anything you have said?"

Dinkmuffin: "The empirical basis that men and women create babies and there has to be a social mechanism for dealing with it."

Posner: [audibly does a spit-take.]
posted by mudpuppie at 7:12 PM on August 27 [6 favorites]


Posner is a very, very impressive jurist. I love his tradition arguments in particular.
posted by craven_morhead at 7:13 PM on August 27 [4 favorites]


Posner is very pleasant to listen to, and his words bring me a strange level of reassurance.
posted by turbid dahlia at 7:17 PM on August 27 [1 favorite]


I'm so pleased about this that I'm OK with dealing with the WHARGBLE ACTIVIST JUDICIARY WHARGBLE I'll be hearing tomorrow.
posted by boo_radley at 7:17 PM on August 27 [2 favorites]


Damn, this is giving me flashbacks to the dinner table with my father, a staunchly moderate conservative government lawyer of many decades.

I mean, admittedly it's better than, because in this case the father-analog is arguing for the side that I agree with, but dang. I want to stomp off to my room and listen to angry music now.
posted by Mizu at 7:29 PM on August 27 [9 favorites]


I always just tell people that an activist judge is any judge they don't agree with.
posted by bile and syntax at 7:29 PM on August 27 [9 favorites]


He's so good. I like when he says "I will be interrupting you, but I will give you your time." That's how it goes -- answer the judge's questions you simpering clueless butts.
posted by aydeejones at 7:33 PM on August 27 [4 favorites]


Eh, I'm not happy with the "married parents are better for children psychologically than unmarried parents". That throws single parents, poly families, and unmarried-by-choice parents under the bus. Also why should every major decision be predicated on "the kids will/won't make fun of me in school"? Kids and teachers will find ways to make fun of you no matter what.
posted by divabat at 7:35 PM on August 27 [5 favorites]


To me an activist judge is someone like Scalia who will bend over backwards to contort himself in any possible way that achieves his political allegiance's objectives.

Of course, the term "activist judge" was created in that cutesy cognitive dissonance way to point and laugh at liberals who are slowly dragging us through the progress of time into the 20th and 21st centuries, pointing out all of the inconsistencies in equal protection under the law. The founding fathers were slave mongers but they mostly knew better, they just didn't have the wherewithal to shake away all of the chains and create a constitution that protects the individuals from non-governmental behemoths.
posted by aydeejones at 7:36 PM on August 27 [6 favorites]


He really destroys the Wisconsin guy with the Loving argument, in whose face he (Samuelson) just falls apart completely.
posted by kenko at 7:36 PM on August 27 [2 favorites]


If you'd like to listen to the whole thing, Above the Law provided links to the unedited recordings. Here they are for Baskin v. Bogan (Indiana) and Wolf v. Walker (Wisconsin). Haven't listened to either yet, but Wolf is supposedly the better of the two.
posted by compartment at 7:37 PM on August 27 [11 favorites]


divabat, that part was a little old fashioned and revealed his paleo-conservative obliviousness, but it dovetailed right into the type of people he's talking to, who go on and on about the nuclear family and blah de blah. But it did make me cringe a bit too
posted by aydeejones at 7:37 PM on August 27 [5 favorites]


I think his real point (beyond the obliviousness of sort of assuming "all things being equal most parents are married") was that having to tell your kid "their parents are married because the law treats them differently" would make a child feel like his parents were less than human or less qualified to be parents, since marriage is so strongly framed about the nuclear family. And that's all for me, I'm in mania typy mode
posted by aydeejones at 7:38 PM on August 27 [3 favorites]


Yeah, I'm guessing that came up through argumentation, and not as a point from Posner directly.
posted by boo_radley at 7:40 PM on August 27 [1 favorite]


One could go further than aydeejones and just take it as an internal critique—that's an important point according to the logic of the lawyers' own positions. And they have no reasonable answer even to that; they're incoherent on a point on which they desperately need a response if their positions are going to be internally consistent. That certainly isn't the sort of point I'd go for if I were making a defense of gay marriage in my own voice, but if I were talking to one of these guys? I'd really want to know what they'd have to say.
posted by kenko at 7:41 PM on August 27 [8 favorites]


That's a much better way of putting it, I'm just used to people pointing out internal inconsistency while they're undermining it, but it's much more savvy to simply speak to the person without mocking them, simply assuming their positions are thought out and built on a bedrock of good faith, before poking it full of holes and asking for straightforward answers to questions.

Also finally in my mid-30's I realize how weird it is to say "founding fathers" (especially America-centric-like) but it's just like THE OVERLORDS ONCE SAID A THING. THE FOUNDERS. THE DOMINION. STAR TREK. ELOI. WHAT.

And now I will really find another thread, or possibly flake on that promise
posted by aydeejones at 7:56 PM on August 27 [20 favorites]


Eh, I'm not happy with the "married parents are better for children psychologically than unmarried parents". That throws single parents, poly families, and unmarried-by-choice parents under the bus.

My reading of this is that he was against the government taking away the possibility of marriage, which is 100%, vs circumstance or choice keeping you from being married, which is the single parent case. Doesn't cover the case of > 2 parents, but it's a big step still.
posted by zippy at 8:12 PM on August 27 [1 favorite]


I liked it when Posner said, "Would you criminalize fornication?" followed softly by, "Would you like to?"

Then he quietly proceeds to knock several ugly arguments out of Fisher, like scorpions out of a dusty boot.

As glad as I am to have Posner arguing on my side of this issue, it's a little unnerving to hear his devastating irony in such a high court. Maybe that's all you can bring when the opposing arguments are so shamefully weak.
posted by ssr_of_V at 8:12 PM on August 27 [22 favorites]


That's some good listenin' right there. I generally hate it when I'm expected to wade through video/audio instead of a transcript, but sweet, sweet pwnage like that just doesn't come along every day.
posted by uosuaq at 8:12 PM on August 27 [6 favorites]


I liked it when Posner said, "Would you criminalize fornication?" followed softly by, "Would you like to?"

And the answer to "would you criminalize fornication?" was "No, no longer". !!
posted by kenko at 8:15 PM on August 27 [4 favorites]


An aside. My long-ago coworker Kevin and his parter who are both male born male and gay, and adopted five kids in Iowa, they lived in the sticks and there was no problem with anyone at the school or with the police or anything.

They sued Iowa to both be listed as parents on the birth certificates [which had formerly had an entry for "Father" and "Mother"] to be changed to "Parent" and "Parent" so that insurance and welfare etc. benefits and authority type things.

They won their case - more than a decade ago.
posted by vapidave at 8:21 PM on August 27 [12 favorites]


I would totally gay marry this magnificent bastard and I'm a hetero dude who's already hitched.

For a similarly hilariously scathing chaser, see Pastor Phil Snider's remarks before the city council of Springfield, MO on gay marriage.
posted by DirtyOldTown at 8:26 PM on August 27 [2 favorites]


"Eh, I'm not happy with the "married parents are better for children psychologically than unmarried parents"."

I think that mischaracterizes the exchange between the attorney and the judge.

The exchange was about the idea that society's denial of the ability to marry stigmatizes the the family, not simply the fact that the family is unmarried.

The exchange was about a specific kind of conversation. Child comes home to parents, asks why they aren't married. Parents say "government won't let us". Child is stigmatized thinking society is against their family. The exchange does not speak to any ramifications of the Parents saying "we've made a choice not to be married".

Posner did also make an argument that due to having financial benefits, children are better off having married parents compared to having unmarried parents - but that argument is about material benefits, not psychological ones.
posted by striatic at 8:41 PM on August 27 [7 favorites]


I don't see how you people can blame someone for wanting to protect traditional marriage as being arranged between one sixty year old man of means and one eleven year old girl.
posted by George_Spiggott at 9:01 PM on August 27 [3 favorites]


He really destroys the Wisconsin guy with the Loving argument, in whose face he (Samuelson) just falls apart completely.

I think the first audio link of this section ("How can tradition be a reason for anything?") is my favorite for these bits:


Samuelson: "I think "Loving" was a deviation from the common law . . . "

Posner: *pained scoffing noise*

Judge Hamilton, clearly gobsmacked: "What??!!"

Posner: "Oh no . . . . it's the common law . . . . . "


Then at the end, he uses the anti-SSM's slippery slope arguments against them, and says, "What if men stopped shaking hands, right? It'd be the end of the nation, right?"

All delivered in such a calm tone and placid cadence that it's like he's reading a bedtime story.
posted by soundguy99 at 9:10 PM on August 27 [6 favorites]


I love me some Posner when he's got his snark on, but let's keep in mind he's also the leading thinker in the "law and economics" field, which is to say Chicago School economics, which is to say he's injected some economic theory I find questionable and morally problematic into a lot of areas of law now.

Also the Seventh Circuit still requires female attorneys to wear skirt suits to appear before them. NO PANTS!

But back to enjoying the very high quality snark from a very brilliant jurist.
posted by Eyebrows McGee at 9:20 PM on August 27 [24 favorites]


Is there a good example out there of Posner going toe-to-toe with a more equal opponent? I don't care what it's about - it could be even about how to get downtown the fastest or the best way to make a sandwich. I just want to see more of the mechanics of how he argues.

Granted, Samuelson was hamstrung by the inherent weaknesses in his side's argument, so there's probably not much he could have done no matter how skillful he may be in other situations. This was so much of a smack-down - in the realm of "clown on a unicycle versus a monster truck" level of argument - that I'm eager to see what Poser can really do with a well-matched opponent. I never thought a recording of court proceedings would remind me of the old "Sunday! Sunday! Sunday!" monster truck rally commercials, but apparently it has.
posted by chambers at 9:21 PM on August 27 [6 favorites]


an appellate judge, whose opinions you can read, follow along with and score for yourself, is very like a major league baseball team. over a 162-game regular season, a top cllub will win 100, maybe 110 games, and even the cellar-dweller will win about 50 games, there are no perfectly good or perfectly bad clubs, and so it is with judges. we each score the law game slightly differently from our bleacher seats, but even the most prominent judges who are the most criticized on metafilter occasionally do surprising star turns. i've been an avid fan of lawball for decades and of course i'm familiar with this player. my scouting report would say that he's economically conservative verging toward darwinian and too statist for my liking, but today he threw high heat from the mound and whacked 'em out at the plate.
posted by bruce at 9:29 PM on August 27 [32 favorites]


Whenever a lawyer is talking superfast like the ones in the clips, you know it's BS. I never saw a lawyer with a good argument, backed by caselaw, evidence, a good client, etc who talked so fast.
posted by mrbigmuscles at 9:35 PM on August 27


Dare I ask how they enforce that, Eyebrows McGee? Because WTF.
posted by bitter-girl.com at 9:55 PM on August 27


let's keep in mind he's also the leading thinker in the "law and economics" field, which is to say Chicago School economics, which is to say he's injected some economic theory I find questionable and morally problematic into a lot of areas of law now

He's also the guy who wrote How I Became A Keynesian in the aftermath of the recent downturn.

If someone is doing economic theory, they probably are injecting questionable thinking, but it seems to me as an economic thinker we could do a lot worse (and regularly do).
posted by weston at 10:09 PM on August 27 [5 favorites]


Interesting link to the Keynesian article. Though if he'd read any Paul Krugman up to that point, he'd have already known much of it.
posted by persona au gratin at 10:24 PM on August 27


POSNER But what is the harm??
SAMUELSON Well frankly we don't know yet — if anything it's what Justice Alito referred to in his dissent in ...
POSNER Well, tell me what that's about? It's always "we don't know what will happen." Let women have access to contraception, Connecticut, 1964. "We don't know what will happen ..."
SAMUELSON Uh, respectfully, first off, Your Honor, the yellow light's on—
WILLIAMS —It won't save you.
SAMUELSON It was worth a shot wasn't it ... ha ha ...
WILLIAMS No one's ever won that one though.

Were it only so.
posted by zbsachs at 10:28 PM on August 27 [5 favorites]


Before you go all mushy on Posner, keep in mind that he is the same guy who has argued that jail sentences are inappropriate for white collar criminals. They should only be fined. Jail is only appropriate for blue collar criminals. That sort of philosophy is where University of Chicago neo-liberal economics leads you.
posted by JackFlash at 10:28 PM on August 27 [10 favorites]


I think common law marriage may have been supplanted by statutory marriage basically everywhere, but common law marriage would hypothetically resume its place if those laws were repealed or otherwise disappeared. What would be really weird is if polygamy became legal under statutory law. Not only is polygamy impossible under common law marriage, but no valid marriage may be conducted in a place that allows polygamy. So if polygamy were permitted in Utah, for instance, no marriages subsequently conducted in Utah would be valid under common law. I concede that this is a bit of a weird hypothetical, but it's worth keeping in mind if the government collapses subsequent to a nuclear holocaust and you wish to urgently set up your own legal system: make provisions for statutory marriage!
posted by Joe in Australia at 10:30 PM on August 27 [1 favorite]


Given the terrible conditions in prisons and the stigma of being a convicted felon, maybe only exempting some criminals from prison is better than not exempting anyone at all.
posted by Rangi at 10:31 PM on August 27 [1 favorite]


Also the Seventh Circuit still requires female attorneys to wear skirt suits to appear before them. NO PANTS!

Seriously? I practice in the Seventh Circuit and I had never heard that. Is it a written rule?
posted by slmorri at 10:33 PM on August 27 [2 favorites]


The best part (21:00 or so in the full WI recording): paraphrasing

Judge: Wisconsin takes the Indiana incest law a bit further - instead of limiting first cousins over age 64 from getting married, they just need a doctor to sign saying that they are infertile. So, you are OK with all this incestuous sex, but homosexual sex is somehow problematic ?

Lawyer: But, umm, but, umm, but, umm, but, umm... Justice Alito said No Fault Divorce was bad!
posted by Pogo_Fuzzybutt at 10:45 PM on August 27


Given the terrible conditions in prisons and the stigma of being a convicted felon, maybe only exempting some criminals from prison is better than not exempting anyone at all.

Because some animals are more equal than others?
posted by Pudhoho at 10:45 PM on August 27 [2 favorites]


Aye ayr, the white collar argument would only be good if it set up some precedent to be used for blue collar crime. I'm guessing it hasn't?
posted by [insert clever name here] at 10:52 PM on August 27


I had flashbacks to getting my ass kicked at high school debate. "But... but... society!"
posted by thack3r at 11:27 PM on August 27 [1 favorite]


Next time I need to register a new user name, I'm going with "Posner's Audible Spit-Take."
posted by palmcorder_yajna at 12:10 AM on August 28 [4 favorites]


Between what happened to the Wisconsin AG and getting full-on smacked in the face I'd rather get punched. He's gonna remember that for the rest of his life.
posted by Doublewhiskeycokenoice at 12:35 AM on August 28


Ah, that kind of Libertarian.
posted by benito.strauss at 12:56 AM on August 28


People seem to be describing this in terms of "judicial bloodbath" and "mauling" and so on, but to me, the best part of it is how Posner doesn't need sophisticated arguing. Samuelson doesn't have an argument, so it's enough to just let him embarrass himself by asking simple questions.

— What is the kind of bad thing that might occur in the future that we should worry about?
— The possibilities are, we don't know, there could be an unanticipated consequence...
— You have no idea, okay.

It's also great to hear a conservative judge ask "how could tradition ever be a reason for anything?"
posted by mbrock at 3:04 AM on August 28 [11 favorites]


Yeah, it's shooting fish in a barrel, and although Posner is entertaining at it, I think any new ADA could have done the same thing in cross-examining a very bright adolescent who still denies he did anything even when, to quote Al Sharpton, he's got the blueberry pie all over his face.

For that matter, so could the average mom.

When you ain't even got lemons, you can't even make lemonade.

Of course the question is, once an ideologically and politically motivated argument has been revealed to have zero rational basis, will courts and judges stand on the principle of reasoned decision or revert to overt ideological bias? SCOTUS has shown us that even very smart jurists who CAN engage in reasoned critique will simply refuse to do so, and, when depleted of even the most tortured and over-rationalized casuistry (like semantic quibbling parlor games posing as "textualism" or divining original intent from distant historical contexts), will simply revert to "because in this case we feel this way and because we say so, but fingers crossed so no precedent!"

To wit, Bush v. Gore.

I enjoyed the snark from Posner, but it's hard to imagine he had to work too hard once he was committed to a fair finding.
posted by spitbull at 3:16 AM on August 28 [3 favorites]


For that matter, so could the average mom.

Hey, let's be mindful of our choices in a thread celebrating equality.
posted by Horace Rumpole at 5:10 AM on August 28 [5 favorites]


That was fun listening. The contrast between the state attorneys with their aggressive deliveries, trying to recite their rehearsed talking points and Posner's relaxed, conversational tone was really striking. It was the difference between an automaton reciting its programming and a live, thinking mind exercising itself. Posner was asking some very obvious, sensible questions, and the state's attorneys had no answer for them. All they had were talking points backed by nothing but hot air.

It's interesting that Posner focuses on adoption. My wife works for a private agency in Indiana. Internally, they don't have an issue with gay adoption. But, they are under scrutiny and pressure from religious groups to not place babies with gay couples. The clout these groups have comes in that a good many potential adoptive couples are pretty religious and would probably respond negatively to news that the agency places babies with gay families, and take their business elsewhere. There is also the issue that a lot of birth mothers come to the agency via crisis pregnancy centers, many of which are church-affiliated. To lose them would be devastating.

fwiw, it's far easier for the agency to place babies with lesbian households and escape notice of the religious groups. No one thinks twice about a single woman adopting a baby. It's actually pretty common. That she happens to have a very close friend is, well, not an issue. Placing a baby with a single man, however, would set-off a lot of alarms and probably bring-down a world of hurt on the agency from the religious groups.

It will be interesting to see how, or if, any of this changes once gay marriage is upheld nationwide. I suspect those groups will simply double-down on their pressure on agencies. Ultimately, agencies are going to be forced to make a business decision as to whether they accept business from gay couples. It's a big unknown how, or if, the new influx of gay couples wanting to adopt might balance the hetero couples that choose not to bring their business to the agency. The real wild card, of course, is what happens if the crisis pregnancy centers freeze them out.
posted by Thorzdad at 5:25 AM on August 28 [4 favorites]


[Regarding whether it's better for kids to have married parents]

POSNER: "Doesn't that make the kids better off?"

FISHER: "Undoubtedly. But--"

Protip: That is not a sentence where you should be using a "but."
posted by Holy Zarquon's Singing Fish at 5:34 AM on August 28 [11 favorites]


Oh, that was beautiful. I love the way Posner has the tone and manner of a slightly confused old geezer but his words and tactics reveal he's anything but.

Before you go all mushy on Posner, keep in mind that he is the same guy who has argued that jail sentences are inappropriate for white collar criminals. They should only be fined. Jail is only appropriate for blue collar criminals. That sort of philosophy is where University of Chicago neo-liberal economics leads you.
posted by JackFlash at 6:28 AM on August 28


And that affects what he does here how, exactly? Your logical fallacy is...
posted by Decani at 5:50 AM on August 28 [2 favorites]


It's like listening to Fred Rogers patiently explain to five-year-olds how the postal system works.

God I love this man.
posted by echocollate at 5:51 AM on August 28 [3 favorites]


And that affects what he does here how, exactly? Your logical fallacy is...

It doesn't, but it undermines the idea that he'd be a good SCOTUS pick.
posted by Holy Zarquon's Singing Fish at 6:09 AM on August 28 [2 favorites]


Posner's an interesting guy. My father was a student of his and worked for him briefly, so I have the first edition of his law and economics textbook on my shelf (I went the economics route, and far away from industrial organization or law and economics, perhaps to the slight disappointment of my dad). He strikes me as one of the last examples of the conservative public intellectuals (I'm thinking, like, William F. Buckley and Milton Friedman) who had views I disagreed with (and who occasionally espoused views I find reprehensible) but who also don't really seem to exist anymore. And Posner's not all that conservative relative to most Republican elected officials.
posted by dismas at 6:12 AM on August 28


And that affects what he does here how, exactly? Your logical fallacy is...

No, it's not an ad hominem because no one here is attacking Posner's position by reference to his track record, much less his personality etc.

Posner's record and judicial orientation doesn't affect the rightness of this decision, or the enjoyability of the oral argument. But it's something that people who find themselves enamored of Posner based only on this exchange deserve to know.

Furthermore, commentary that considers judicial temperament and philosophy is not the same thing as ad hominem.
posted by snuffleupagus at 6:13 AM on August 28 [6 favorites]


The good thing about Posner is not that he is always right, but that he is intellectually honest enough to grapple with tough arguments and he will sometimes change his mind and do so openly.

I wonder if someday Timothy C. Samuelson will be embarrassed when one of his children or grandchildren finds the recording of the Wisconsin argument.
posted by Area Man at 6:19 AM on August 28 [8 favorites]


The good thing about Posner is not that he is always right, but that he is intellectually honest enough to grapple with tough arguments and he will sometimes change his mind and do so openly.

Which is exactly why he'd be an excellent SCOTUS pick, regardless of whether I agree with the general tenor of his economic views or not. I don't want 9 clones on SCOTUS, all with the 'proper' views; I'd much rather have 9 diverse perspectives which are combined with intellectual honesty and a willingness to concede the point that their initial position on an issue might be wrong.
posted by BlueDuke at 6:37 AM on August 28 [15 favorites]


And that affects what he does here how, exactly?

It affects how endeared we should be to him in general.
posted by kenko at 7:15 AM on August 28


Posner is not only a sharp legal mind, but one who is willing to change his conclusions based on evidence and societal changes. Point in fact -- support of marriage equality represents a shift in Posner's thinking. In his 1994 book Sex and Reason, Posner supported the repeal of sodomy laws (which, at the time, were still on the books), but did not support same-sex marriage, stating that "permitting homosexual marriage would be widely interpreted as placing a stamp of approval on homosexuality."

There's nothing more refreshing in the judicial world than someone who is not an ideologue.
posted by Ben Trismegistus at 7:18 AM on August 28 [6 favorites]


I love how calm and measured the judge sounds

I somehow ended up watching the sentencing of Ariel Castro, and the way the judge was able to keep his cool in the face of that monster and all his whiny excuses blew me away. Wah, wah, I didn't rape those women, we were all happy, it was consensual- and he just said, well, you plead guilty to those charges, so admitting you did those things is part of what that means. Incredible. I think I'd be letting through at least a little Judge Judy sass in a situation like that.
posted by ThePinkSuperhero at 7:28 AM on August 28


There's nothing more refreshing in the judicial world than someone who is not an ideologue.

Even more refreshing would be "public intellectuals" who didn't use their lucid, clever reasoning to lock themselves into bigoted, backward positions for decades. To him, its all just a high school debate game where the cleverest guy wins. It's the public who suffers. I'll take a judge who is right on the issues over a clever one any day of the week. Posner is wrong on too many.
posted by JackFlash at 8:29 AM on August 28 [1 favorite]


Federal judges serve for decades and may well confront issues that haven't emerged yet. How do you know a judge will continue to be correct on the issues?
posted by Area Man at 8:44 AM on August 28 [1 favorite]


How do you know a judge will continue to be correct on the issues?

You don't. That's why valuing the judge's ability, as BlueDuke says to have "intellectual honesty and a willingness to concede the point that their initial position on an issue might be wrong" is, for me, the most important thing.
posted by chambers at 8:57 AM on August 28 [2 favorites]


Even more refreshing would be "public intellectuals" who didn't use their lucid, clever reasoning to lock themselves into bigoted, backward positions for decades.

It would be wonderful if we could have shows today that have debate/discussion in a manner like the old PBS show Ethics in America, but I don't think it could ever happen on any network other than PBS and not quickly be mutated into some form of absurd TV show you would only expect to see a clip of in a dystopian future movie.

Edit: the old episodes of Ethics in America is actually online now from learner.org.
posted by chambers at 9:07 AM on August 28 [2 favorites]


keep in mind that he is the same guy who has argued that jail sentences are inappropriate for white collar criminals. They should only be fined. Jail is only appropriate for blue collar criminals. That sort of philosophy is where University of Chicago neo-liberal economics leads you.

I've been thinking about this overnight, and while it's hard to say for certain without reading the details of his argument, I might actually at least half-agree with Posner. Class distinctions are poor features for a justice system, but so is significant overuse of prison. It seems to me that if there's any other option (in the case of white collar crime, perhaps restorative justice + significant fines), it's credible to argue it's preferable to incarceration.
posted by weston at 12:06 PM on August 28 [1 favorite]


I love/hate Posner, and it's entertaining to see people who are unfamiliar with his work and would hate him if they knew it well gushing about him because he used his powers for what they consider good in this case.

That said:

What's really fascinating to me about these two oral arguments is that Posner has latched onto the core problem with the anti-same-sex-marriage side's entire case and has decided, instead of coming right out and pointing it out, to just beat the hell out of them like a cat playing with an injured bird.

The core problem of the legal arguments against same-sex marriage is this: The arguments are all dishonest and disingenuous, in that they refuse to stand up for and admit the true reason for opposing same-sex marriage. And the reason they're being disingenuous, over and over again, is that they are smart lawyers who know that the true basis for opposing same-sex marriage cannot, in a million years, win in court.

The true reason is this: They believe homosexuality (which they'll call "conduct," irrelevantly) is morally wrong and that anything that encourages or does not discourage it will harm society and everyone in it because - and only because - of its moral implications. That other laws have given up ground in that battle is irrelevant. They would like those laws (e.g. adoption by same-sex parents) to be repealed, as well, on the same grounds.

But they won't say it directly, because they are moral cowards who are unwilling to stand up for their own convictions. And here's why they won't stand up for their convictions: Deep down, they know they are wrong. They are ashamed of their alleged moral convictions, because they have a conscience, underneath all the rage. And they will lose, because their arguments are disingenuous; a facade hiding a morally-repugnant losing argument that they're too cowardly to make.

Posner takes it as an opportunity to abuse the lawyers for a while. But Hamilton, in my view, is the real hero in this oral argument, because he actually articulates the important questions that Posner is too busy laughing at his own cleverness to ask.

Also, I feel bad for the lawyers. Being beat up by a panel of three judges who have absolute power over you is not fair, no matter how bad your arguments are.
posted by The World Famous at 12:08 PM on August 28 [5 favorites]


This seems like purely an academic exercise for these lawyers. These arguments fall flat because they've decoupled their opposition to gay marriage from right wing categorical opposition to gay families. In reality, people who oppose gay marriage don't want them to marry specifically *because* it would make them stronger candidates for adoption/parenting, more people would grow up in same sex households bereft of legal disadvantage and society would eventually conclude that it's not so bad after all to grow up in a household where parents are gay, not so religious and not so beholden to gender roles. Most of the kids will be straight, but they'll be a different kind of straight person as a result of their lived experience - that's part of how they figure gay marriage will affect straight marriage, however poorly they articulate it.
posted by Selena777 at 12:33 PM on August 28 [2 favorites]


In addition to what TWF said, I'll note that SSM cases and, even moreso, creationism cases often feature Christians lying to judges. For Jesus. I mean, sometimes only by omission or only about what the motivation for a law is, but still. Lying. To judges. For Jesus.

because they are moral cowards who are unwilling to stand up for their own convictions. And here's why they won't stand up for their convictions: Deep down, they know they are wrong.

Also they won't stand up for their convictions because they know that The Liberals and the anti-Christians who control America force judges, even decent God-fearing judges, to illegitimately rule against those convictions even though they are entirely valid.
posted by ROU_Xenophobe at 12:35 PM on August 28


Also, I feel bad for the lawyers. Being beat up by a panel of three judges who have absolute power over you is not fair, no matter how bad your arguments are.

It might not be fun, but it's completely fair. They're lying to the second-highest federal court (12-way tie) in the country, and the judges know it. A bit of humiliation is getting off easy for that.
posted by Holy Zarquon's Singing Fish at 12:40 PM on August 28 [1 favorite]


I think they're also afraid of how people will treat them - in social interactions, in business, etc. - if they openly state views they know many people consider bigoted and repugnant. But I want to think more highly of them, so I give their conscience the benefit of the doubt, as well.
posted by The World Famous at 12:41 PM on August 28


It might not be fun, but it's completely fair. They're lying to the second-highest federal court (12-way tie) in the country, and the judges know it. A bit of humiliation is getting off easy for that.

It's not the humiliation that I think is unfair. It's that they're trying to have a conversation with three people who have the power to ruin their career and who feel absolutely free to cut them off, shout them down, talk over them, and call them ridiculous to their face. The power differential alone makes it problematic for the panel to bully the attorney - even where the attorney is completely wrong, as the states' attorneys are here.
posted by The World Famous at 12:45 PM on August 28


It's not the humiliation that I think is unfair. It's that they're trying to have a conversation with three people who have the power to ruin their career and who feel absolutely free to cut them off, shout them down, talk over them, and call them ridiculous to their face. The power differential alone makes it problematic for the panel to bully the attorney - even where the attorney is completely wrong, as the states' attorneys are here.

At the risk of being glib, that's in the job description. Appellate advocacy has followed this basic shape for hundreds of years. The attorneys present their best arguments, and the judges tear them apart, regardless of whether they agree with a position or not. (In my experience, judges are often harder on the attorney whose position they favor, because they want to make sure they've discovered every pitfall that might result in reversal on appeal.)
posted by Ben Trismegistus at 12:51 PM on August 28 [1 favorite]


It's not the humiliation that I think is unfair. It's that they're trying to have a conversation with three people who have the power to ruin their career and who feel absolutely free to cut them off, shout them down, talk over them, and call them ridiculous to their face. The power differential alone makes it problematic for the panel to bully the attorney - even where the attorney is completely wrong, as the states' attorneys are here.

I think there's a difference between discussing something contentious and possibly wrong, and being utterly, completely, dishonestly wrong. I would expect some formality and civility in the former, but not the latter.

For example, I would expect the same (if not worse) treatment if the state attorneys were arguing in favor of banning interracial marriage.
posted by kyp at 12:56 PM on August 28


At the risk of being equally glib, yes, I'm aware that that is the job description, as it's a job I do. But where laypeople are listening to and commenting on oral argument, I think it can be helpful to acknowledge that this is not a conversation between individuals with equal opportunity to engage in the discussion.
posted by The World Famous at 12:57 PM on August 28


OK, acknowledged. But is it unfair?
posted by Ben Trismegistus at 1:16 PM on August 28


As a mechanism for eliciting a useful dialogue and sussing out issues, yes, it is unfair. It is also unfair as a representation of discussion of an issue when being read or listened to by observers who haven't read the briefs. Oral argument on appeal is primarily a chance for the parties to either blow everything by saying something stupid or to correct a judge's incorrect impression of the case or the law before the opinion is set in stone. Where the judges take advantage of their position to simply browbeat the lawyer, those purposes are not met, and it's unfair. Here, Posner gives adequate consideration to most of the answers he cuts off, to be sure. But Hamilton's more thoughtful questions are, in my opinion, a better example of how appellate oral argument should be conducted.
posted by The World Famous at 1:31 PM on August 28 [1 favorite]


"It's not the humiliation that I think is unfair. It's that they're trying to have a conversation with three people who have the power to ruin their career and who feel absolutely free to cut them off, shout them down, talk over them, and call them ridiculous to their face. "

I mean, to be fair, Posner is kinda like that to everyone, and a lot of attorneys who practice before the Seventh Circuit bear their Posner-scars with pride. A friend of mine got called a name by Posner in a published opinion and it's pretty much her #1 career bragging point. (She continues to argue before the Seventh Circuit frequently.)

I don't think judges can really ruin attorneys' careers just by being nasty to them in normal judicial functions ... they'd have to start handing down sanctions, and even then, not too many lawyers actually lose their careers over sanctions. I'm not a big fan of the "judges behaving like dicks in oral argument" school of judicial behavior from a legal standpoint, amusing as I often find it, but I don't think it's unexpected, and I don't think it's career-ruining.

(My husband has argued in front of the Seventh Circuit (including a panel with Posner on it); I have not.)
posted by Eyebrows McGee at 1:55 PM on August 28


Agreed. That it's totally normal, expected, and that litigators wear it as a badge of pride is, however, irrelevant to my point.
posted by The World Famous at 2:02 PM on August 28


I think that an oral argument on a topic as publicly significant as same-sex marriage is slightly different, however. I have no doubt that Posner was, in part, using his position to tear apart the arguments not just of the attorney in front of him, but of everyone around the country who believes them. It's not merely a situation where the case has a discrete and a narrow impact. This is both wide-reaching and highly debated. Posner was certainly grandstanding, and I don't begrudge him that.
posted by Ben Trismegistus at 6:16 PM on August 28 [2 favorites]


I think they're also afraid of how people will treat them - in social interactions, in business, etc. - if they openly state views they know many people consider bigoted and repugnant. But I want to think more highly of them, so I give their conscience the benefit of the doubt, as well.

So I was curious about this—part of this, anyway. These are attorneys for the state, right? Are they from outside firms that were hired for this case and actually believe these arguments have merit (or believe that homosexuality is wrong and are ginning up arguments as best they can)? Or are they just obligated to represent the state because the state employs them and has for some reason decided not to just roll over? If the latter you'd think they'd be inoculated from a lot of these consequences because it's the job of an advocate to be, well, an advocate. (It's still shocking how poorly they argue—not just how bad their arguments are because that's not surprising, but how badly they deal with questions they really ought to have anticipated, and I could see professional consequences from that.)
posted by kenko at 9:05 PM on August 29


I would feel bad for the lawyers if they aren't believers and have to present these ludicrous arguments because otherwise they'll, like, lose their jobs. If they actually believe them, though? Not a shred of pity. The arguments don't deserve the time of day.
posted by kenko at 9:08 PM on August 29


The last honest conservative: Meet the brilliant Ronald Reagan appointee making Antonin Scalia’s life very difficult by Eric Segall writing for Salon includes quotes from Posner on a Wisconsin abortion law requiring hospital admitting privileges: no “other procedure performed outside a hospital, even one as invasive as a surgical abortion (such as a colonoscopy) … and even if performed when the patient is under general anesthesia … is required by Wisconsin law to be performed by doctors who have admitting privileges at hospitals within a specified, or indeed any, radius of the clinic at which the procedure is performed.” (Previously: The Incoherence of Antonin Scalia)
posted by larrybob at 4:57 PM on September 2


So I was curious about this—part of this, anyway. These are attorneys for the state, right? Are they from outside firms that were hired for this case and actually believe these arguments have merit (or believe that homosexuality is wrong and are ginning up arguments as best they can)? Or are they just obligated to represent the state because the state employs them and has for some reason decided not to just roll over?

I believe the Indiana lawyer was their Solicitor General. That's typically a political appointment. So, there is a good chance he is a conservative republican who is genuinely opposed to same-sex marriage. I'm not as sure about the Wisconsin lawyer. People working for a state's AG do sometimes have to go out and argue for the constitutionality of a law they themselves may not like or support. I think a smart AG would make sure the person arguing this particular case didn't actually have such reservations, but I've never worked in that kind of office and don't know how it works.
posted by Area Man at 6:35 AM on September 3




They argued the case last week, and it's a 40-page opinion. I'm not a lawyer, much less a judge or a clerk for one, but there's no way Posner didn't have that written before arguments, right?
posted by Holy Zarquon's Singing Fish at 12:24 PM on September 4




They argued the case last week, and it's a 40-page opinion. I'm not a lawyer, much less a judge or a clerk for one, but there's no way Posner didn't have that written before arguments, right?

Possible, but not likely. I clerked for a state appellate court and they always drafted the opinions before oral argument -- all of the law is in the briefs, and the oral argument is generally just to refine the finer points, not change the judges' minds altogether. Then we would tweak the opinion based on what happened at oral argument.
posted by craven_morhead at 3:24 PM on September 4




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