What it might really mean to be a country under the rule of law.
I don't know how many have been following the Prop8 trials (if you haven't, you can check out the liveblogging here here or at Fire Dog Lake), but the last couple of days have consisted of the anti-Prop 8 side (Boies) making mincemeat out of the witness called by the pro-Prop 8 side, Dr. Kenneth Miller. I say this in a state of something like incredulity. This guy was called as an "expert" witness by the Prop 8 people-he's a political scientist who claims to be (and may in fact in some other context be) an expert on citizen referendums, such as that which passed Prop 8. The Plaintiffs (prop 8) also claimed that he's an expert on gay and lesbian political issues-and that's where the problem comes in. He's just not. Not only is he not an expert, but he clearly knows very little about gay and lesbian political issues. At this point, a day and a half has been spent with Boies asking him questions that he doesn't know the answer to. How many states have anti-gay-marriage laws? He doesn't know. What percentage of Californians belong to the Catholic church? He doesn't know. If religion WASN'T the main factor in people's decisions about Prop 8 (as he claims) what was? He doesn't know. The points that he's made for the Plaintiffs are a-that No on 8 raised a lot of money, so they must be politically powerful, and b-that few laws have been passed that harm gay people (!!!)
I'm wracking my brains trying to figure out what their strategy is here. I understand that a lot of their witnesses dropped out, and so I guess the more "credible" ones are no longer available. I also understand that they're counting on the 5 conservatives in SCOTUS to come around for them, so that it actually doesn't matter so much whether they win or lose at this level (and, as someone over at the Prop8TrialTracker pointed out, it might be better for them, from a fundraising perspective, to lose. People contribute more money when they feel embattled). What's tough for me to understand is why they've insisted on making such a poor showing. I mean, granted this guy is clearly not an expert in what they want him to be an expert in. But the more I watch this trial the more respect I have for what being a skillful lawyer means. The anti-Prop 8 witnesses have all been superstars-and, in particular, the experts (like Nancy Cott, one of my academic heroes) actually were experts. But part of what made them come off so well was that they clearly had some idea of what points the lawyers on each side were going to try to make and how. The anti-8 lawyers had obviously taken some time and trouble to explain how the legal questioning was likely to go.It seems to me that the pro-Prop 8 people should have done something like this with Miller, and just didn't. And Miller himself clearly hadn't taken much time to prepare what they told him to(which, incidentally, you're apparently not allowed, as a lawyer, to tell your expert what to read). So it's not just that (I think)they're losing pretty spectacularly, but they just look bad all around. They may know they have no evidence that will truly stand up in a court of law, and they may know that that doesn't matter to the 5 conservative Justices who will ultimately decide this case. But just as professionals, doesn't it behoove them to make it look better?
What's a little startling to me in all this is partly the willingness to look like a fool within your own profession for an ideological reason that you can't support (in academia, where I currently spend most of my time, great premium is placed on being able to bluff out gracefully if you need to. It's not that we try to be in positions like that-but you prepare for the fact that your research will be questioned, and you prepare ways to answer even questions that you don't fully know the answers to. Granted that academic questioning, unlike legal questioning, also allows the space for "I don't know that right now, but here's what I would do to figure it out." but even still). But I'm also partly astonished at the degree to which these lawyers just seem not to care. I know that not everyone who becomes a lawyer loves law. Lots of people do it for the money, I would guess. But when you work every day with a set of concepts and techniques, don't you have to have some respect for them? If the judge is the one who decides about the law, don't you have to have some respect for his/her courtroom? That's what the idea of "contempt of court" is about, right? These guys aren't showing contempt of court by yelling and screaming, but they are showing true contempt by putting up a case that they KNOW can't stand legally, and not even trying to cover for that fact, because they just don't care, ultimately, what this court has to say. Maybe I'm being overly idealistic, having watched too many episodes of Law and Order or something-but this is genuinely shocking to me.
It occurs to me that this is maybe the truest sense in which the US is a country outside the rule of law. One reason that all the extra-legal Bush machinations have been able to be pushed under the rug is that most people, on some level, believe that they only apply to those "other" people, the "enemies." And about some of those laws, that's true on the surface. But what does impact all of us is that a substantial and powerful portion of this society thinks the way Bush and Cheney think-that the law is secular and therefore invalid. Not just that particular laws are invalid (I, for instance, think that Prop 8 is invalid), but that the system itself, which EVERY DEMOCRATIC COUNTRY HAS, whereby evidence is examined according to set rules, is invalid. It's similar to the contempt of science, which also functions on evidence (and that's part of why they can't make a better showing here-because their arguments are not evidence based). The Bush administration validated this kind of anti-evidentiary thinking, by practicing it himself. And that's really scary. You can say (although I don't really believe this) that we're not torturing anymore. But we are, in fact, a country outside the rule of law. I know the religious right believes that taking away evidentiary standards somehow makes things more democratic (i.e., why should you be discriminated against if you don't have any evidence??)...but the other countries where that's happened have been largely Communist. Just sayin'.