Prop 8: Fighting about the Stay Already

You know how the Defendant-Intervenors submitted a premature request for a stay in the Prop 8 case yesterday?

Well, the plaintiffs have now asked Judge Walker not to issue a stay without giving plaintiffs a time to weigh in.

Dear Chief Judge Walker:

I write on behalf of Plaintiffs in response to the obviously premature Motion to Stay filed yesterday by Proponents (Doc #705). As the Court is aware, Proponents’ motion requests that a stay be issued contemporaneously with the judgment. Plaintiffs intend to respond to the stay motion, if a response is a warranted, as soon as practicable after the Court issues its Order. If the Court is inclined to consider Proponents’ request, Plaintiffs respectfully request the opportunity to be heard on their motion.

Respectfully submitted,

Theodore J. Boutrous Jr.

[my emphasis]

Gotta love Boutrous’ dig at the way the Defendant Intervenors jumped the gun on the ruling…

But I would say that the fact that the sides are already arguing about whether people should have the right to marry in CA immediately–or only after the inevitable appeals–is another sign that Walker is going to rule for marriage equality today.

Expect a Win for Plaintiffs and Marriage Equality in Perry Prop8 Case

As I indicated earlier, and as nearly every media outlet and blog has now figured out and related, the decision from Judge Vaughn Walker in the Perry v. Schwarzenegger Prop8 gay marriage case is to be issued tomorrow sometime between 1 pm and 3 pm Pacific time. Here is what other media sources and blogs either do not know or won’t relate: the lead attorneys for the respective sides likely got courtesy copies from the court of Judge Walker’s draft opinion around 2 or 3 o’clock yesterday afternoon.

As a courtesy on really big opinions, so as to give counsel a chance to prepare appropriately for media response and/or immediate motions that need to be filed, courts occasionally give lead counsel on each side their draft opinion slightly ahead of public filing and release, but do so with a strict gag order so no one ever knows this happens This is something that Vaughn Walker has, from experience, a track record for doing, and I think it likely, actually almost certain, that he did just that here. Which makes the fact that the H8ter Defendant Intervenors (DIs), who propagated the hateful Proposition 8, and who oppose gay marriage, have already lodged a Motion For Stay Pending Appeal very, very telling.

PLEASE TAKE NOTICE that, should the Court enter judgment for Plaintiffs, on October 21, 2010, or as soon as the matter may be heard, before the Honorable Vaughn R. Walker, United States District Court, Northern District of California, 450 Golden Gate Avenue, San Francisco, California, Defendant-Intervenors Hollingsworth, Knight, Gutierrez, Jansson, and (“Proponents”) will move the Court for a stay pending appeal. In the alternative, Proponents request a limited seven-day stay of the Court’s judgment to permit them to seek a stay pending appeal from the Ninth Circuit and, if necessary, the Supreme Court.

DIs filed this Motion For Stay Pending Appeal at shortly after 6 pm Tuesday night according to the docket notice issued by the court. Exactly what they would do if they know they lost. As the Washington Post reported late Tuesday night:

Both sides previously said an appeal was certain if Walker did not rule in their favor. The case would go first to the 9th U.S. Circuit Court of Appeals then the Supreme Court if the high court justices agree to review it.

Anticipating such a scenario, lawyers for the coalition of religious and conservative groups that sponsored Proposition 8 in 2008 filed a legal brief Tuesday asking Walker to stay his decision if he overturns the ban so same-sex couples could not marry while an appeal was pending.

“Same-sex marriages would be licensed under a cloud of uncertainty, and should proponents succeed on appeal, any such marriages would be invalid,” they wrote.

Well, yes. Both sides have said all along they would appeal from a negative decision. But only one side is laying the groundwork for it, and that side is the Proposition 8 supporting gay marriage hating bigots. They have a courtesy copy of Walker’s decision and they don’t just think they lost, they know they lost.

And it is hilariously ironic that the gay hating Proposition 8 bigots base their Motion For Stay on the thought that failure to stay might harm the gays wanting to get married. How nice of them to be concerned. What a load of disingenuous dung.

The decision by Vaughn Walker to have a full fledged trial with a full evidentiary record was inspired and put the Perry case in a unique position compared to how such issues are usually handled on submitted pleadings and argument. This one had a real trial with a real record; that makes a ton of difference for the appeal.

Appellate courts cannot just substitute their views for that of the trial court when there is an evidentiary record, findings of fact and conclusions of law like this, where it is much easier to do so if it has been decided by preliminary injunctive relief, motions or on the pleadings. Walker can really put this in a unique posture with how he frames his findings of fact and conclusions of law; and I expect him to do just that. Walker is very detailed and very smart and crafty. He will lock in and protect his decision to every extent he can, and trust me Walker is very good at this. One of the best I have ever seen. Ted Olson, David Boies, Plaintiffs Perry et. al and fans of Constitutional equality everywhere could not ask for anything more.

So tomorrow looks to be not only a historic day, but a very good one for equality and civil rights under the Constitution. It is about time.

Perry v. Schwarzenegger Prop 8 Decision Tomorrow

I have just received the following email from the Judge Vaughn Walker’s court on the Prop 8 case:

August 3, 2010


On August 4, 2010, the court will issue its written order containing findings of fact and conclusions of law following the court trial held in January and June of this year. The order will be e-filed in the court’s Electronic Case Filing system, and will be immediately available thereafter through ECF and PACER. Visit for details on registering for PACER. There will be no court proceeding associated with the publication of the order.

A small number of hard copies will also be made available for public review shortly after the order is e-filed in the following locations:

San Francisco Courthouse: Clerk’s Office (16th Floor) & Press Room (18th Floor)

Oakland Courthouse: Clerk’s Office

San Jose Courthouse: Clerk’s Office

So tomorrow will be a very momentous day. The decision in Perry will be groundbreaking and historic regardless of which way it goes. From what I saw and heard at the closing arguments in June, it is hard to believe there will not be some relief granted by Judge Walker to Plaintiffs Perry et. al; the question is how it will be formed. But that is just a guess; Walker certainly did not tip his hand in any regard, so it could go either way.

Stay tuned to Emptywheel and Firedoglake for full coverage of the decision when it is filed.

Perry v. Schwarzenegger Prop 8 Closings Wrap Up

FDL Covers the Prop 8 Trial

Greetings from the United States Federal Courthouse for the Northern District of California where Marcy Wheeler, Teddy Partridge and I spent Wednesday covering closing arguments in Perry et al. v. Schwarzenegger et al. It was quite a day and, despite the solemn nature of court proceedings, a monumental and electric day. To be honest, the electricity is far more in the people, whether the plaintiffs, defendants, or the myriad of people here to witness the proceedings on what is without any question a unique and groundbreaking case.

Very early on, quite frankly I think before anyone else, I described Perry as the modern day equivalent to the Scopes Monkey Trial. I still very much stand by that comparison in the way both matters laid bare the raw bigotry of the private prejudice and hatred sought to be continued to be effected through the public government. For all the claimed exceptionalism of America, we still have so far to go.

You have already had the real time live blog from Marcy and Teddy, and their reportage was absolutely stunningly good. I have had the privilege of covering the actual live courtroom for the day. And a privilege it was too. Unfortunately, there was not usable WiFi or 3G coverage from my seat and I had to text my reports to Egregious and Marcy and have them cut and paste in. Simply put, Firedoglake had a large team working the Prop 8 proceedings for you — some you see, some behind the scenes, including the wonderful moderators. There is a lot to getting this level of coverage; if you have a dollar or two to support the effort, it really does help as it is you that allows us to bring this work to one and all.

In closing on the live portion of Wednesday’s coverage, I want to leave you with links to the set of questions Judge Vaughn Walker propounded prior to today’s closings and the respective answers of the two main parties. They are absolutely germane and critical to the full understanding of what occurred in both the trial and, more importantly, the summations today. You have plenty of time to review them all at your leisure, but I recommend that you all do so. It is the crux of one of the most significant and game changing trials that will occur in your lifetime. Yes, the case, and its broad civil rights and liberties implications is literally that significant. Thank you for the privilege folks!

Here is Judge Walker’s question set

Here are the answers of Plaintiffs Perry et al.

Here are the answers of Defendants/Intervenors

Prop8 Liveblog: Ted Olson Brings Us Home

FDL Covers the Prop 8 Trial

[About 20 minutes w/ Cooper and then Olson’s rebuttal]

Walker: Mr. Cooper, carry on.

Cooper: Appreciate Court’s indulgence.

Walker: Well, that’s a good idea.

Cooper: want to take up CA SC’s ruling on the marriages. This is something on which I agreed with Mr. Olson. I don’t believe that that would make a difference, I don’t believe that fact that CA SC rendered its ruling and then was effectively overturned by will of the people should make a difference in this case. Court asked Mr. Olson what kind of regime if constitutionality o CA law prescribing traditional def of marriage would turn on whether or not issue came to federal court before or after state court. Crawford v Board of Ed, 1982. Upheld CA Amendment reduced remedial tools avail to state courts in school desegregation. Court stated as follows, rejected contention that once state chooses to do more, may never recede, ability to experiment.

Walker: What do we make of that in this context?

Cooper: When CA SC goes beyond federal, People of state were empowered to reverse.

Cooper: I want to address, finally, issue whether or not legitimate basis to, for people of this state to be concerned that redefining marriage, redefining a traditional understanding of marriage presents any basis for concern about harm to marriage and to interests that institution of marriage has historically been designed to advance. Many people believe that such harm is threatened. Before analyzing this, have to begin two propositions. Redefining institution will change institution. If you change definition of thing, hard to imagine how it could have no difference on the thing itself. Plaintiffs’ experts and others have acknowledged that change will result. Prof Cott, one could point to earlier watersheds, but none so explicit as this turning point. Estridge, enlargening would transform it into something new. Joseph Raz, there can be no doubt that recognition of gay marriage as that form polygamist to monogamist. Marriage will ever stand for choice, cutting the relationship between sex and diapers. Plaintiffs think consequences will be good consequences. It’s not something they can possibly prove. Prof Cott. Consequences of same self marriage impossible to know, no one predicts future accurately. I’ve heard and read this more than anything else I have spoken. I don’t know. Your honor, whatever your question is, is I damn sure know.

Walker: What do you make of Blankenhorn’s statement that when same sex marriage legal we’ll be more American. That was your own expert.

Cooper: Blankenhorn was giving voice to a sentiment. He shares that sentiment w/many of my fellow Americans. He still believes that the threat of harm to a central and vital institution, marriage is too daunting, to run the risks of gratifying what would otherwise for Mr. Blankenhorn, the advent of same sex marriage. There are many who went into the polling place, that’s my speculation, that’s all it can be. There are millions of Americans who believe in equality, but who draw the line at marriage. They believe this could be profound. It could portend some social consequences that would not be good ones. That reality, the reality that I did not know, Blankenhorn agreed, there’s never been anyone who knows what tomorrow will bring, but if there’s a legitimate basis to be more concerned about that, it couldn’t be more rational for the people of CA to say “we aren’t going to run that risk.” Perhaps Mr. Olson and his clients whose sentiments are powerful will be able to convince their fellow CAs that in fact they’re right.

Walker: A disability, a classification has been put on marriage, that disables people who wish to marry persons of the opposite sex.Do you not have to show a correlative benefit. The “I don’t know” is that enough to impose upon some citizens a restriction that others do not suffer from?

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Prop8 Liveblog: The Proponents Make Their Case

FDL Covers the Prop 8 Trial

Cooper: NY Court of Appeals ruled in 2006, until very recently, only marriage between two sexes. MA “changed def of marriage as inherited from common law.” CA: From beginning of statehood, marriage between man and women. Why has marriage been defined as exclusively opposite sex. Makes marriage fundamental to very existence of human race. Court record makes it clear that marriage to channel potentially procreative sex into marriage to ensure that any offspring brought into family.

Walker: DO people get married to benefit the community?


Walker: When one enters into marriage, one doesn’t say, oh boy, I’m going to benefit society. I’m going to get a life partner. All sorts of things come out of marriage. Is the purpose of marriage to benefit society?

Walker: Why does state enforce marriage?

Cooper: Bc fundamental to survival of race.

Walker: Why isn’t it just about enforcing a contract?

Cooper: Why is it that every state does regulate this relationship? Because it’s crucial to the public interest. The procreative sexual relations, enormous benefit to society. A very real threat to society’s interest.

Walker: A threat?

Cooper: To whatever extent children born into this world w/o this union, by both parents that brought them into this world, a host of very important and very negative social consequences arise. THe purpose of marriage is to provide societal approval to that marriage and to the children. Marriage is a license to cohabit and produce legitimate children.

Walker: State does not withhold license of marriage from people who cannot produce children of their own. Are you suggesting state should?

Cooper: it is by no means a necessary requirement to fulfilling state’s interest in naturally procreating relationships.

Walker: Then the state must have an interest apart from procreation.

COoper: It rationally extends state’s interest to channel into marriage all potentially procreative relationships, as well as all male-female relationships. It furthers the state’s interest. Isn’t a requirement that state insist that people who get married be able to have children. Case after case has agreed that all states haven’t required procreation in no way eliminates procreative purpose. TO enforce that, would have to be some kind of fertility test, some kind of pledge, some kind of post-marriage enforcement.

[Afghanistan has that…]

Cooper: how could you enforce pledge to have children, and then allow people who weren’t having children, would have to be some kind of marital annulment. That’s Orwellian.

Walker: It is Orwellian. Isn’t that the logic that flows from premise that marriage is about procreation.

Walker: If purpose is procreation, there are far more tailored ways to enforce sexual conduct. There are support obligations and a whole host of other obligations that has nothing to do with sexual conduct of the parties.

Walker: Parental responsibilities extend to people not involved in procreation.

Cooper: WRT adoptive children. State does make arrangements. Does create in law a relationship that is in all respects, virtually all respects, identical to natural and biological relationship.

Walker [interrupting]: ISn’t the state indifferent wrt how the child was conceived? Once child exists as a human being state has some interest wholly apart from the way the child was conceived.

Cooper: That’s entirely the point. State cannot ignore child’s well-being. If child raised in any other but relationship between man and woman who conceived, state still has an interest in that child. State must step forward, often times and take responsibility itself for the upbringing for the support of that child.


Okay, I am trying to be fair, but Cooper is just bad.

Even his procreative argument is a circle of alligators chasing each others tails. Walker is probing him with questions: it is a one sided dance.

Cooper: For a millenia, every state has had an interest in well-being of child.

Walker: Let’s move from the millenia to the three weeks in January when we had a trial.

Cooper: Overwhelming evidence shows it was about the interest of children.

Walker: What was the evidence and who was the witness who entered that witness?

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Prop8 Liveblog: The City of SF Weighs In

FDL Covers the Prop 8 Trial

Therese Stewart: The fact that legislation costs govt money is not sufficient to make law unconstitutional. Court decision on public schools. Considered toll on children, but also role of education, basic tools. Serious harm that Prop 8 imposes on gay men and lesbians, their children, and cities. Support case that Prop 8 was born of animus. Laws that can’t be explained give rise to inference.

Walker: Show unique harm to SF.

Stewart: Both to SF and state.

Walker: Point out SF.

Stewart: City loses revenue when people don’t come to SF to marry.

Walker: People come here bc it’s city of love?

Stewart: that’s part of it.


City of SF atty flailing slightly. Walker helps her out with what her standing issue is really is. Good, not sure she was going to get there. Says is important to SF because SF is a city of hearts and lovers. Crikey, she may break out into The Tony Bennett song.

[Moves on]

Stewart: Costs of psychological treatment. Lesbians and gay men suffer harm at hand of family members. Youth can’t aspire to have marriage and families. As consequence, rates of suicide among lesbian and gay male youth.

Stewart: talks about plaintiff

Walker: If decision goes against plaintiffs, does SF have standing to appeal.

Stewart: I believe plaintiffs will appeal.

Walker: Let’s decide they don’t have standing.

Stewart: SF would have standing.

Walker: Then presumably Imperial County would have standing.

Stewart: Imperial County couldn’t show that it’s public health system suffered harm.

Walker: Let’s go back to particularized harm in SF.

Stewart cites how much public health care system would have to pay.

Stewart: If stigma were eliminated, that would reduce higher incidence of mental health disorder. Going back to Ryan Kendall. That is somewhat we face. When he was being abused, went to Denver HHS to juvenile dependency, became ward of state. Relied on public health care system.

Stewart: Increased policing costs. When people speak in disparaging language people feel empowered to take action in hate crimes.

Walker: Judicial decisions wouldn’t eliminate kinds of motives that give rise to harms you just described. Depend upon motives that law really can’t change.

Stewart. I don’t know that it would end them all together. But testimony of Mier, Herrick, Sanders, when you have structural stigma endorsed by govt, it does send message, translates into things like hate crimes. Hate crimes based on sexual orientation, second highest category, has been since 1995. Evidence about bullying. City accutely aware that history of govts demonizing people. SF once used its police power to harass its own people to drive gay people into closet.  SF wants nothing more than to treat its citizens all equally. Prop 8 denies us the ability to do that. Evidence presented at trial shows how deeply hurtful that is. We join in plaintiffs’ request that court hold prop 8 unconstitutional.

[More applause in ceremonial court room]

Governor’s counsel now.

Governor waives right to make closing argument and thanks honor for your time.

Attorney General waives his right to make closing arguments as well.

Walker: Well, I have a question.

Alameda County Clerk Recorder lawyer:

Walker: DO you ask parties to identify genders. For marriage licenses?

ACCRL: I don’t know, but I believe box on marriage license.

Walker: We checked SF, Orange, and Imperial County, it appears on apps for marriage licenses, that in SF there is box for groom, bride, and that’s labeled optional. In Orange, bullet for groom, bride, none. Now

[laughter in court room, from Walker]

ACCRL: I don’t know what to make of if. I suppose you can apply, doesn’t mean registrar will recognize marriage. May be a way of sorting out apps for marriage not currently legal.

Walker I think the same is true in Orange [sic]. In Orange county, you can apply online. If you fill out say, groom, punch next, call up other party, you can put in groom again. It doesn’t give you an error message. I suppose I can take judicial notice of all these things.

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Prop 8 Liveblog: “June Is the Month for Marriages”

FDL Covers the Prop 8 Trial

Teddy and I are in the ceremonial court room to watch the Prop 8 Trial. bmaz is making friends down in the actual court room. Teddy’s doing a full liveblog over there where the wireless signal is strong. Until he needs a break, I’m just going to write some impressions and transcribe bmaz’s comments (he’s got no signal).

bmaz, in the court room writes,

Talked to Ted Olson on the elevator and walking down the hall to court room. He is excited and cautiously optimistic. In courtroom now Walker about to take the bunch. There is a strange hushed buzz of excitement about the room. You can tell this is special; there are two sketch artists! It is electric here.

After all the lawyers introduce themselves, Walker says,”Well this is an impressive array of legal talent.” Then, explaining that the delay between the trial and the closing argument (caused in part by ACLU dispute over disclosure), he says the delay may be appropriate. “June is, after all the month for weddings.”


The respective parties are at long rectangular counsel tables, actually perpendicular to the bench. Leaves the attys facing each other – kind of unusual. Walker makes a joke that June is historically ‘good month for weddings’ so is right for closings on this case.

If I were the defendant-intervenor team, I’m not sure I’d take that as a good omen.

Olson up. State has changed constitution to take away right from these plaintiffs.

Olson: Present marriage from four positions.

Proponents. In words of lead counsel, central and defining purpose of institution of marriage is to promote procreation. Core need that marriage aims to meet is child’s need to be practically and legally affiliated with man and woman who brought child into world. Proponents of prop 8 see marriage as an institution of, by, and for the state, and to promote procreation and raising of children by biological children.

Olson quotes from Prop 8 campaign lit: “Protect our children from learning that gay marriage is okay.”

Olson: For obvious reasons the “gays are not okay” message was abandoned during the trial in favor of the procreation and deinstitutionalization thesis.


Olson goes right at di arguments. He is effectively painting it as religious based state action/enforcement. Walker tags him with fact he has burden of proof. Olson insists strict scrutiny is the relevant test (he is right)

Walker: But it is the plaintiffs who bear the burden of proof is that not right?

Olson: Up to a point.

Walker: and that standard being?

Olson: Strict scrutiny.

Walker: Are you focusing on facts pertinent to CA, or facts generally with respect to gay marriage in the country?

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David Boies: Prop 8 Trial Establishes as “Matter of Fact” that Marriage Equality Doesn’t Hurt Straight Marriage

The lawyers for the plaintiffs in Perry v. Schwarzenegger trial had a conference call to preview what they will say in next week’s closing arguments (which Teddy, bmaz, and I will cover from the courthouse).

The most interesting response from the legal team came in response to questions about the defendants’ complaints about having a trial and their efforts to withdraw almost all of their “expert” witness testimony.

In response to that question, David Boies engaged in a bit of trash-talk, noting how much of their witnesses’ testimony either contradicted itself or ended up endorsing key claims made by the plaintiffs.

Boycotting a trial almost never a winning strategy. They identified 8 experts. What happened is that their experts broke down, either at deposition or at trial. They tried to come up with the evidence, they knew they were required to come up with evidence. They tried to build that trial record and they simply failed. They didn’t fail because they’re bad lawyers, they failed because there isn’t any evidence to support the argument they’re advocating.

Ted Olson answered the question, first of all, noting that the defendants’ witnesses couldn’t hold up under Boies’ cross-examination. But he also emphasized the audacity of spending tens of millions of dollars to convince Californians to deprive a class of people of a fundamental right, but then saying they didn’t want to defend the same arguments in an independent court of law.

With respect to their complaints about the trial, I find it ironic that people that spent $40 million dollars to pass Prop 8 suddenly didn’t want to defend it when David Boies was going to challenge their witnesses. … Trials are pursuits of justice. That is how we resolve things in this country, particularly when there’s a constitutional matter. So for the proponents of Prop 8 who convinced millions of Californians, to take away rights of portion of Californians. To say, “We don’t want to defend what we did in trial of independent American judiciary” is audacious, is the best thing I can say about it.

But the discussion was perhaps presented most simply when Boies explained the value of getting the defendants’ witnesses to agree with key aspects of the plaintiffs’ arguments over the course of the trial. Boies noted that the trial record demonstrates as “a matter of fact” that there is no harm to heterosexual marriage from permitting gay men and lesbians to marry.

Do Bloggers Suck or Does TradMed Just Suck More?

Above the Law, reporting on a speech 9th Circuit Court Chief Judge Alex Kozinski gave at Fordham Law, summarized his argument as, “A New Argument in Favor of Cameras in the Courtroom: Bloggers Suck.”

Now, for the record, I’m all in favor of cameras in the courtroom and have long been, particularly once I discovered that TradMed journalists look for different things at hearings than I do. And particularly today, as I’m deciding whether I have time to get to the closing arguments in Perry v. Schwarzenegger, drink some beers with bmaz, and be back here in time to drive to Syracuse for my mom’s 70th, I’d love the option of sitting at home and streaming the trial (though beers with bmaz might still win the day).

But I wanted to look more closely at the argument Kozinski seems to be making (assuming, of course, that the blogger at Above the Law competently replicated it, because there’s always the possibility he’s just being loud and biased).

Kozinski started his talk by going over some of the arguments he has made before [PDF] in support of cameras (e.g., studies show cameras don’t affect the proceedings, quoting his “old boss” Warren Burger — “People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.”).

It wouldn’t be like the O.J. trial, which decidedly set the cameras-in-the-courtroom movement back. Kozinski advocates stationary cameras that would not zoom in, zoom out, or otherwise overly dramatize the courtroom events. Kozinski acknowledged that if you were to choose between a O.J. media circus or reports from informed journalists like Nina Totenberg or Linda Greenhouse, one might be happy to live without cameras.

But that’s not usually the choice one has. Kozinski pointed to the “long, slow decline of the newspaper industry” and the “rise of a much more diffuse style of coverage” as a major reason why cameras should be brought into courtrooms. Increasingly, the public is relying on “pseudo-journalists” (aka bloggers) for their instantaneous legal news.

“On the Internet, the loudest voice gets the most attention,” said Kozinski, who said that tends to lead to a distortion of the coverage of a case. He also raised the risks of relying on unknown bloggers, pointing to the case of “Dr. Flea.”


“The days of obscurity for judges and reliable, informed journalists are gone and gone forever,” said Kozinski. “If courts don’t change with the times, change will be forced upon them.”

Kozinski’s arguing, apparently, that we need cameras in the courtroom because trials are no longer covered with the skill that Nina Totenberg and Linda Greenhouse bring to their work. Furthermore, Kozinski seems to be arguing, the public is fooled into following “loud” chroniclers of trials, rather than competent ones. And, it seems, Kozinski believes readers (the blogger here doesn’t specify what kind of reader) risk … something … if they rely on pseudonymous bloggers.

As some of you no doubt recall, a blog named “FireDogLake” actually once covered a trial–the Scooter Libby trial–also covered by Nina Totenberg. FDL’s coverage was undoubtedly biased and at times even delved into heavy snark (since then, in fact, one of the bloggers has developed a bit of a reputation for a potty mouth). Nevertheless, FDL’s liveblog–written under the pseudonyms “emptywheel,” “Swopa,” and “Pachacutec”– became the standard “instantaneous” news from the trial. Two of the TradMed journalists in the courtroom–including one whose beat was the Court–followed the stream, not to mention an unknown number of journalists who chose to stay away from the court house and follow along the thread. The General Counsel for the Washington Post chose to follow FDL’s liveblog, rather than the superb work of Washington Post reporter Carol Leonnig, because with five reporters testifying in the trial, he needed up-to-the-minute near transcription rather than twice-daily analysis of the events. When it was all said and done, Jay Rosen declared that in most categories of coverage “FDL was tops.” I assume Rosen even considered Nina Totenberg’s coverage of the trial when he said that.

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