Dr. Linda Hirshman

Philosophers talk about a mind in a vat -- pure human consciousness divorced from the material world. Watching David Boies’ cross-examine is like watching a mind in a vat -- the brain firing too fast for normal mortals to perceive. Boies’ slight, pale appearance adds to the feeling.

My favorite example today comes where Boies is cross-examining defendants’ witness David Blankenhorn about where, in all his resource material, a particular point appears. Blankenhorn names a source, Norval Glenn. The cross goes on without a hitch, and, a few minutes later:

BOIES: Okay. While we were talking, I was trying to read through Norval Glenn's article which you have here. And while I haven't maybe read it as carefully as I would like, I don't see anything in here in which he talks about heterosexual marriage rates.Do you recall anything in here about heterosexual marriage rates?

BLANKENHORN: I was relying for that statement on a paper that he wrote several years ago.

The defendants’ cross-examination was staggeringly boring. Coming in with giant binders of inconsistent material, the defendants confronted each plaintiff’s witness with every single inconsistent thing anyone has ever said about anything in the history of human thought.

The length of the defendants’ cross became something of a courtroom joke: when defendants’ lawyer David Thompson asked the court for a break for his witness, because Boies’ cross had gone on so long, the judge volunteered that “there is something about pots and kettles, talking about long cross-examinations, Mr. Thompson.”

Defendants needed some cross to establish elements of the defendants’ own case, since they had withdrawn almost all their witnesses. But a lot of it was cumulative. Boies, by contrast, cross-examines with a scalpel. The morning of Day 11 he takes it to Miller, who had previously criticized the referendum process, especially liable to be used against minorities. Watch for exchanges like the following to demonstrate how Boies slowly dissects the witness into admitting what plaintiffs need to prove:

BOIES: You say: "In exercising judicial review, the courts' responsibility is to check majority actions that run counter to constitutional principles (including individual rights, especially those of unpopular minorities). Do you see that?

MILLER:. Yes

BOIES:. And as a political scientist, you would agree with that statement today, correct, sir?

MILLER: Yeah. I think there's a difference between protecting rights and expanding rights, which is where I get into my -- you now have the shift in the analysis. But if there's an established right, and it's being violated by the initiative process, then I think the courts have a responsibility for checking that.

BOIES: Right. And when Proposition 8 was passed, gays and lesbians had had the right in California to marry, correct, sir? That's a yes or no question. Or you could say, "I don't know."

(Laughter)

BOIES: But it's yes, no, or, I don't know.

MILLER:. It was a contested question. There was a pending ballot initiative before the Court...

BOIES:. At the time that Proposition 8 was passed, in the months of July, and August, September, and October, 2008, did gays and lesbians have the right to marry in California, in your opinion, Dr. Miller? Yes, no, or, I don't know?

MILLER: The court had issued a decision, and they had a right to marry, yes.

BOIES: So the answer to my question is: Yes?

MILLER: Yes. The court had, through that decision, created a right.

On redirect, the witness testifies he had changed his mind about courts’ role in initiative proceedings. The idea of having an expert in the role of the courts testifying about what the courts should do was a little weird, and it looks like the judge thought so, too. At the end of the day, the Court asked Miller, “you talking to me?”

JUDGE WALKER: Are you saying that it is never appropriate for the judiciary to intervene in the initiative process?

MILLER: No, your Honor.

JUDGE WALKER: When is it appropriate?

MILLER: In my view, it's appropriate when an initiative or just like any other statute enacted by a legislature violates in this case the federal constitution.

JUDGE WALKER: And who is to make that determination?

MILLER: That's ultimately a question for the courts to decide.

Defendants’second witness, David Blankenhorn, does not have a doctorate and is not a professor. Worrying about the decline of traditional marriage he started the Institute for American Values. The American Values are “fatherhood, marriage, family structure, child well-being.” On cross as to his qualifications, Boies tries pretty hard to deny him qualification as an expert – he has no peer-reviewed publication on marriage, doesn’t teach in a university, and so forth. All his opinions are based on his study of other experts.

Having (barely) qualified Blankenhorn, Defendants’ lawyer Cooper asks him the basic question:

COOPER: Mr. Blankenhorn, what is marriage?

BLANKENHORN: Marriage is a socially-approved sexual relationship between a man and a woman... to achieve this goal of... uniting the biological, social, and legal dimensions of parenthood, in fixing that, because we know how important this is for children.

All the rest, as the sage said, is commentary. There is, Blankenhorn admits, an “opposing view,” that marriage is fundamentally a private adult commitment. But, he concludes a private adult commitment is not “the heart and soul, the core, the fundamental thing itself.”

He then introduces “deinstitutionalization... That institution becomes frailer.” In one of my favorite moments in the trial, Blankenhorn candidly admits how far his theory would turn back the clock. Marriage was already deinstitutionalized by out of wedlock birth, divorce, in vitro fertilization. “And I meant to say just for our purposes today, you know, heterosexuals, you know, did the deinstitutionalizing.” But “if we move toward a widespread adoption of same-sex marriage, I believe the effect will be to significantly further and in some respects culminate the process of deinstitutionalization of marriage.”

Cross-examining, Boies mostly cashed out Blankenhorn’s admission that everything he knows he learned from the writings of others, leading Blankenhorn to admit that none of the experts he cited to the court had said that same sex marriage would lead to a reduction in opposite sex marriage. Since he’s not himself trained in family history and did not do original studies, Plaintiffs can argue that all the damage supporting the enactment of prop 8 is the product of Blankenhorn’s overheated imagination.

~Dr. Linda Hirshman, Author and retired Professor of Political Philosophy

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