Boies and Olson Optimistic

by Brian Leubitz

David Boies and Ted Olson made an appearance in New York this week, saying that they are optimistic about the disposition of the Prop 8 lawsuit. They pointed out the strength of their own case, and the weakness of the Prop 8 supporter’s case.

“I have yet to hear any powerful argument on the other side,” Olson said, suggesting that Prop 8’s defenders quite nearly defaulted in mounting any counter-case.

“They had no evidence and we had all this,” Boies said, pointing to his side’s success at proving what it set out to. (GayCityNews)

Of course, there’s one issue that seems to be troubling people. If they think they can get 5 votes for marriage equality, what’s up with the televising decision? After all, if you recall how ridiculous that decision was, and the scathing dissent pointing out just how extraordinary the ruling was, you might think that it wasn’t really about TV as much as it was about marriage equality. But Boies and Olson want to direct that question to the longstanding resistance of cameras in the courtroom by the Supreme Court.

Boies and Olson were having none of it. The Supreme Court, Olson said, has an allergy to cameras in federal courts, and was unwilling to allow them to get their nose under the tent in District Court Judge Vaughn Walker’s unprecedented plan for a video feed –– notwithstanding the Ninth Circuit’s approval of it.

In fact, cameras, though routine in many state courts, have made little headway in federal courts, so Walker’s plan was a break with tradition.

But, Liptak noted, the 5-4 majority –– split along the usual ideological lines, with Justice Anthony Kennedy, a swing vote on several gay rights victories, this time siding with the conservatives –– also gave credence to the Prop 8 supporters’ arguments that their privacy and even their well-being would be threatened by broadcasting their testimony.

This, of course, of course, is the problem. Why did the Court buy the “privacy” argument, when, as Boies points out, their witnesses were people that sought out publicity. They were people who spoke to conferences and at press events. The difference was that they were scared of being cross-examined and exposed by David Boies. Yet, despite the fact that these people have no problem appearing on television at the Heritage Foundation, the Supremes bought the “fear” argument, hook, line and sinker.

The question is then was this about cameras or was it about marriage itself. Frankly, we won’t have an answer to that question for several years. But Boies and Olson believe they have built a solid record that will stand up well through all levels of appeal.

“Every person in America should see this, and we would end this now,” Ted Olson, one of two superstar attorneys challenging California’s Proposition 8 said of the case he and fellow litigator David Boies have mounted in a San Francisco federal court.

Let’s hope they are right.

UPDATE: Towleroad has an interview with the pair. They weigh in on the question of Judge Walker’s sexuality (doesn’t matter), whether the Court will lead (Boies thinks so), and cameras in the courtroom (Olson thinks it’s more about the anonymity of the Justices). All in all, they seem pretty positive right now. Check out the video, it’s worth your ten minutes.