Thursday, January 28, 2010

San Francisco Diary--Journal Of An Exile

The storms have temporarily passed, the temperature is almost at sixty degrees, and the sun is shining. All in all, a beautiful day here in The City By The Bay. Unfortunately, much of the current fun is being had behind closed doors, in courtrooms, and in the automobiles of commuters traveling across The City's main bridge arteries.

Note: Bay Area commuters are not going to find their commute into San Francisco any less expensive over the next few months and years. The authority which controls all the major bridges into San Francisco (or lead there), including the most-heavily traveled Bay Bridge, now will impose increased fares during peak hours. The bridge tolls go up to $6.00 one way (no toll in the other direction). Only the Golden Gate Bridge is controlled by a separate authority, which has already raised tolls. Bad news for everybody crossing the bridges, but particularly for those using the much-beloved car-pool lanes. The drivers of those cars will be charged the same toll, but now instead of being rewarded for being "energy conscious," they will pay an additional "per passenger" toll. If it moves, charge it a toll. If it merely goes along for a ride, charge it a toll as well.

NOTE: The Proposition 8 trial has now moved into its second phase, and the testimony is now heating up. The plaintiffs rested their case-in-chief, and it's now the defendants' turn. Both lead attorneys are brilliant attorneys, but defendants' attorney was beginning to cause the pro-Prop 8 crowd some nail-biting by asking so few questions on cross-examination during the plaintiffs' case. It has turned out that lead attorney David Boies was using tactical restraint. He had asked few questions earlier, and reserved his cross-examination for matters where the testimony was clearly pure opinion, didn't address the equal protection constitutional argument, or was patently wrong. He left the defense "experts" pretty much alone to hang in the wind on their social issues.

Boies first recalled plaintiffs' witness David Blankenthorn, a current convert to the anti-Prop 8 position, and asked him pointed questions about the inconsistency in his direct testimony relating solely to the social impact of Prop 8 and its prior legal history. That gave Boies an opportunity re-open the touchy-feely aspects of the formerly anti-gay marriage witness who testified about the sociological impact of gay marriage. Boies was able that way to put the purely sociological aspects of the anti-Prop 8 lawyers back in front of the judge (this is a non-jury trial). Plaintiffs were arguing that one's feelings about gay marriage are more important than centuries of law and constitutional precedent regarding marriage.

Blankenship had previously espoused publicly, financially and in articles the position that "'leading scholars' share his view that same-sex marriage would weaken heterosexuals' respect for the institution and accelerate a half-century-old trend of increased cohabitation and rising divorce rates." On direct testimony, Blankenship had failed to mention that in a 2007 book he wrote, he stated: "We would be more American on the day we permitted same-sex marriage than we were on the day before." Not only was that inconsistent with his prior positions, but Blankenthorn was unable to explain what had changed his mind other than anectdotal sympathy for certain gay couples he knows of. Lead attorney for plaintiffs, Ted Olson, in his own tactical move not to emphasize the weakness of the sociological arguments, asked only a few short questions on re-direct examination in an attempt to redeem the seeming confusion of the witness.

Then Boies brought on his string of legal experts to counter the few legal scholars that Olson had called on direct. Claremont-McKenna law professor Kenneth Miller testified about the due process arguments critical to the entire case. He pointed out that there is no genuine legal difference between the legal rights of California domestic partners and those of traditional marriage partners. He contends that the word "marriage" is a political definition, not a legal one, and therefore belongs in the political arena, not in the courts. The definition of marriage can be altered by appropriate amendment to the state constitution just as Prop 8 and the subsequent confirmation by the state Supreme Court were accomplished. Miller testified that "California attitudes toward the definition of marriage have been constantly evolving, but that due process arguments are invalid because the plaintiffs have yet to point out where gay marriage proponents are actually denied any access to domestic bliss that is available to heterosexual couples under current California law, the effects of the upholding of Prop 8, and the adequate independent state grounds restraint on federal court proceedings."

Boies then called a series of legal scholars who testified that the definition of "marriage" was a purely political matter, unrelated to constitutional due process and equal protection arguments which will ultimately be the only issue which will be addressed by future appellate courts. Plaintiffs' academic witnesses had argued that allowing gays and lesbians to marry would benefit the couples and their children and improve the status of marriage without affecting opposite-sex couples. Each of the defendants' legal witnesses in some way made it clear that they considered that testimony to be interesting and perhaps even true, but had nothing to do with the due process and equal protection arguments. Those are purely sociological and political questions, not legal questions. Olson again soft-pedaled his cross-examination so as to avoid emphasizing the strength of the defendants' arguments. Some of the defendants' expert witnesses actually support gay marriage, but insist that the courts are the wrong place to be pursuing that goal. That's where the more germane issue resides with the political process, the initiative constitutional amendment process, and the ballot box. If Prop 8 is to be overturned, let it be done by the voters on a superseding ballot measure.

The outcome of the trial may end up being the result of the active participation of Judge Vaughn Walker, who has frequently indicated his pro-plaintiff positions on the record, from granting the original plaintiffs' motions to proceed to trial, to frequent reiterations of the plaintiffs' position in the form of questions to the witnesses. He also allowed testimony from San Diego Mayor Jerry Sanders, who gave a teary-eyed litany of his sins against his lesbian daughter by previously supporting Prop 8 which at best had a cumulative effect on the hearts-and-flowers "how do you feel?" therapeutic psycho-sociological approach to the law. The judge is doing an excellent job of convincing himself.

This is beginning to get interesting, and if Olson continues on his current course, he is planning on relying on rebuttal testimony and closing argument (at which he is possibly the best in the country) rather than attacking the defendants' position directly. Of course, Boies is no slouch in this area either, and in civil trials neither side has the advantage in closing argument, unlike criminal trials where the prosecution gets the last word every time. Both sides are merely preparing their record on appeal, where lengthy appeals are both inevitable and will ultimately be disposed of at the highest court levels.

NOTE: On Wednesday, Steve Jobs of Apple introduced his newest product at the San Francisco Yerba Buena Center. Interestingly, the rollout took place at the Cultural Center rather than the more typical rollout out at the Moscone Tech forum. I'm not quite sure what that actually means. Reactions and critical evaluations of the new "I-Pad" have been mixed, and it remains to be seen if it will be successful financially, even after the original estimated cost of the gadget had been halved by the time of the announcement.

NOTE: San Francisco actually has a somewhat serious Republican rival to Nancy Pelosi for the general election in November, though he hasn't won the primary yet. There's a lot of buzz about the self-described libertarian-conservative candidate. He's certainly not the typical RINO put up by the local Republican powerhouse, the San Francisco Republican Central Committee. He probably has the general election prospects of a snowball in hell, but considering our recent frigid San Francisco weather and the wind blowing in from Massachusetts, maybe this snowball actually does have a chance (though I'm not holding my breath). Boston isn't Massachusetts, and San Francisco isn't California.

A Fordham University graduate in Business Administration, John Dennis has founded two very successful real-estate related businesses, and is very savvy in the use of the internet for raising funds and getting his message out. He bolted from the SF Central Committee and became a member of the more conservative San Francisco Republican Liberty Caucus. Dennis is opposed entirely to government-controlled health, care, cap 'n tax, and the Cyber-Security Act which gives the President near-dictatorial power over the internet during a crisis, but grants the administration almost unfettered discretion in determining exactly exactly what a "crisis" is with little oversight from Congress. Let us not forget that the unofficial position of the Democratic Party is to leave "no crisis unexploited" and leftist Democrats have declared multiple crises over the state of America since Obama's election.

Dennis supports health-care reform in the form of free-market competition, with heavy emphasis on private insurance being closely monitored by regulators, but essentially fully free to market across state lines and to be exempt from antitrust legislation. He opposes illegal immigration categorically, and adds that it seriously weakens the American dollar. While supporting much more limited legal immigration, he also proposes drastic penalties on businesses that hire illegals, and wants "guest worker" visas that would eventually allow the fast-track to immigrants who arrive here legally and follow all the traditional paths to American citizenship, including assimilation and disavowal of all prior allegiances.

He is a doctrinaire gun-ownerhsip supporter, who goes so far as to say "I don't even need a Second Amendment to tell me that I have the right to defend myself," and he sees gun ownership as a mainstay in protecting against government tyranny. He opposes Social Security in its present form as a "pyramid scheme," and supports an opt-out system allowing citizens to choose a private retirement plan with corresponding tax equalization consequences with Social Security, and no penalty for the private plan doing better than the government plan. To the best of my knowledge, he has not yet taken a position on those who invest in private plans that fail or produce less than the current Social Security plan, but since Social Security is taking the fast-train to bankruptcy, I'm not sure how much of an issue that really is.

He supports two of my favorite positions. First, he believe the Constitution ought to be amended to repeal the Seventeenth Amendment providing for direct election of Senators, and wants it returned to the legislatures of the various states. Second, he believes that the Tenth Amendment is abundantly clear about the extent to which the federal government is allowed to preempt state decisions.

He strongly opposes federal funding for abortion and fetal stem-cell research, and opposes government-paid political junkets (with special emphasis on Nancy Pelosi as the biggest offender).

Where he may be unclear so far is where he stands on some issues and whose political camp he will sit in. He got his first experience as a Get Out The Vote volunteer in the 2008 presidential race, supporting candidate Ron Paul. His energy policy position is closely akin to the Democratic position that "the key to energy needs is the concept of improved relations with foreign countries because the federal government's only energy policy should be its foreign policy (emphasis added). He has so far failed to express his opinions on domestic energy production, and that will need to be seriouly addressed in the near future. He opposes extension of the Bush tax-cuts but advocates spending reductions to reduce the federal spending spree. It seems clear that right now, he only understand one-half of the Laffer Curve. He somehow thinks that by raising income taxes, that money will somehow mystically be put back in the taxpayers' pocket by reduced federal spending. He wants to abolish the Federal Reserve, and has not indicated any strong reasons for doing so other than it's "straight out of the Communist Manifesto" without explaining why abolition would be preferable to top-to-bottom reform of the Federal Reserve system.

He believes that gay marriage should be a strictly state issue without federal interference, but has not yet discussed how he would feel about a federal ban on enforcement of "sister-state judgments" (without banning banning gay marriage or defining marriage itself) via the constitutional Amendment process.

Until those issues are clarified, I'm not ready to throw my full support behind Dennis, but even if I don't like his positions when clarified, he's still head and shoulders above every other candidate the Republicans have produced. Still, his personal opposition to gay marriage (even though he would accept it if it becomes the people's will) will go over like a lead balloon here. The vast majority of San Franciscans believe that any opposition to gay marriage is a hate crime. And don't forget, he is running for a House seat from San Francisco.

12 comments:

StanH said...

It sounds like Boies and Olsen aren’t disappointing in their titan attorney status, and are moving this case along quickly to the Supreme Court? Big money behind this endeavor.

Steve Jobs is a brilliant man. My guess just off reputation his newest gadget will be a homerun.

After last Tuesday in MA, anything is possible in CA. But he has to get his votes from the Bay Area not the whole state, a real challenge, but anything is possible, right?

Note: Doesn’t MA seem longer ago that last Tuesday?

I enjoyed the open thread last evening, great fun.

Writer X said...

The more pictures I saw of the iPad yesterday, the more it looked like a cartoon prop. I look forward to seeing it in person.

Speaking of Prop 8, how did the McCain ad go over in San Fran? I'm talking about that creepy pic with Cindy McCain and the duct tape. If only the duct tape could stay over the ditzy daughter's mouth, but that's another story.

It would be sweet karma for Nancy Pelosi to lose her seat.

LawHawkSF said...

StanH: I guess the trial is really no different from most trials in many ways. It's never like the shows on TV. But those two are circling each other like wary predators. Olson's smart enough to know he has to put on something resembling facts in order for there to be a trial at all, and Boies knows exactly what Olson is up to. It's all a setup for the appeals. There's plenty of money being spent, but cases like this are as much for building the reputation as for the money.

I thought the I-Pad looked like a giant I-Phone, but I'm not much of a tech-head, so I'll have to rely on my son's opinion. He thought it was "OK."

Dennis has to get his entire vote from San Francisco, and can't draw from any outlying district in San Mateo County, so it will be exceptionally tough for him to win.

It was fun ripping up one of the worst, most belligerent State of the Union addresses I've ever seen.

LawHawkSF said...

WriterX: There's not much buzz about the McCain ad in the Bay Area. We get so much of that corny "street theater" that it's routine, and the tape across the mouth is cliche here. Big-mouthed radicals in San Francisco are always using that prop to demonstrate how their constant screaming about nearly everything is being silenced. It's ridiculous.

The only hope of defeating Pelosi is that she takes the vote for granted, and doesn't continue to push for government health care. Radicals here occasionally shoot themselves in the foot with protest votes, and enough votes for Dennis from the center combined with protest votes for a possible independent radical like Sheehan, and there's a minuscule chance.

AndrewPrice said...

I suspect the ipad will take off just like the iphone did.

Like Writer X, I wonder about the Cindy McCain ad too. I can't imagine anyone in SF wouldn't like the Cindy McCain ad, though I think it really hurts McCain in the rest of the country because it makes us question how real anything he says is.

LawHawkSF said...

Andrew: The most common comment I've heard about the I-Pad is that it "bridges the gap between smart phones and PCs." That would probably be a winning argument for me when I'm ready to make another move, though I'm used to putting a phone in my pocket or sitting at a desk to work on the computer. Maybe it's like Goldilocks' bed. My phone's too small, the PC is too big, but the I-Pad is just right. The big distinction seems to be that the I-Pad works by using the "cloud" to maximum effect, while PCs are program-heavy.

San Franciscans don't like or dislike the McCain ads so much as they are indifferent to it. We see better demonstrations at Powell and Market every day of the week. The oddest part is that San Franciscans even know what duct tape is.

HamiltonsGhost said...

Lawhawk--I saw that candidate Dennis calls himself a libertarian-conservative, but with a few exceptions, he seems reasonable enough for the support of moderate-conservatives.

LawHawkSF said...

HamiltonsGhost: Since I consider myself a conservative with libertarian leanings, I'm with Dennis on much of his agenda. Although I consider the Laffer Curve to be a rigid rules, half a Laffer is better than none, and the Democrats still think it's voodoo economics.

His support of Ron Paul leaves me somewhat cold, but that was only Dennis's first foray into politics, and at least he wasn't working for Kucinich. Paul takes some very legitimate stands, but has a tendency to wander off into crazyland. Pure libertarianism as it is interpreted by some is just another word for anarchism. Dennis's other stands don't fit into that mold.

I am also concerned about Dennis's complete lack of reference to our abundant domestic energy supplies which have been denied us. Even the idiot Obama last night contradicted Biden and himself by admitting that clean coal technology is both possible and available. And there's still nuclear energy, and abundant oil if we're ever allowed to drill for it. Clean, green energy is an admirable goal, but it's farther down the road by far than even the ten years that Clinton predicted for new domestic oil sources to be exploited. We need to be energy-independent now. Dennis's silence on domestic energy sources while suggesting that we continue to kowtow to Middle East oil sheikhs and tyrannical regimes is very troubling. Foreign relations are a vital government function, but they shouldn't be guided by the need for resources that we already have available to us at home.

At present, I'm dubious about Dennis, but he may very well turn out to be that 80%er we're always talking about. And as I've advised others, even a liberal Republican is still a Republican for purposes of calculating the percentage of Congress critters who are in the Republican caucus. 50% + 1 in the Republican caucus in Congress, and we control the majority. That goal alone is probably enough to get me ultimately to swallow any objection I might have to Dennis.

CalFederalist said...

Are there any alternatives to our state spending all this time and money on the gay marriage fight? The court cases could go on for years, the taxpayers are paying for the state to defend the proposition, and there could then be another expensive state election over the issue if the U.S. Supreme Court upholds the proposition.

LawHawkSF said...

CalFed: Well, I can suggest one. The legislature (or the people by a separate initiative) could change the definition of "marriage" by eliminating the word completely. I would object to that unless there was also a provision which guarantees that since marriage is no longer a legal definition for the status of the partners, a religious institution cannot be sued or prosecuted under civil rights statutes for refusal to perform what is now no longer called a "marriage." The institution can continue to call marriage "marriage," but the state would not be able to use that as an excuse to persecute religious institutions since there would be mandatory rules for how to register the domestic partnership (or whatever they decide to call it).

This solution would probably require that the partners have some sort of civil ceremony to satisfy the law after the religious ceremony, if any. I don't like it, but I could live with it. My religious affiliation says that marriage is a holy estate, instituted of God, and not to be put asunder by man, so essentially what the state does is of little religious importance to us. At most, the change might be an offense against religion and tradition, but it wouldn't affect any religious institution's right to conduct whatever kind of ceremony it chooses. We could personally choose to recognize a gay marriage or not, but that marriage would have full equal legal status regardless of our personal feelings.

CalFederalist said...

Would your alternative cause the current case to "go away?"

LawHawkSF said...

CalFed: Most likely. I can't see any reason for the litigation to go on since the new law would resolve the dispute. Everything hinges on the word "marriage." I think any reasonable court would declare the pending case moot (of no further legal usefulness).

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