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Liveblogging Day 10: Part V Boies grilling Miller

Liveblogging

By Rick Jacobs

David Boies (B) continues grilling Professor Kenneth Miller (M) on cross.

B: The first sentence reads that by limiting opportunities for the proponent to … initiative system makes compromise less necessary.” This is what M wrote in 2004.

M: I agree with this.

B: Reads: By allowing proponents (of initiatives) to eschew compromise, initiative system leads to polarization. You wrote that?

M: Yes.

B: Do you believe it to be true?

M: More or less, yes.

B: Last full sentence: thus in CA, both initiative const amendments and statutes undermine the authority of representative government. What did you mean there by representative government?

M: I’ll have to recall… In general I meant that initiatives have the tendency to make it more difficult to do its job, for example by locking in spending mandates or other things. Fair characterization of my views on this.

B: Look at tab 82.

[UPDATE] 4:15

[It’s a good thing that this guy has tenure. I would not want to go back and face my colleagues at an academic institution after this shredding. M should have been our witness, except that he does not come off as so competent in this matter.]

B: Looks at another article he published in 2001. We discuss how ironically direct democracy can be less democratic than representative democracy because it violates norms of… transparency, compromise…”

M: Yes, that’s what I called my Madisonian critique of democracy.

B: Hence, direct democracy that forms greatest threat to democratic government are initiative forms. Initiative Constitutional Amendments most seriously undermine representative government because they can only be undone by another constitutional amendment. Do you still believe this is an accurate statement?

M: I don’t believe it is always the case. It can be. It’s true that an initiative constitutional amendment can only be undone by another amendment. Has to be put on ballot, maybe by leg, but still has to be passed by the people.

B: Looking at heading, Undermining Democratic Opportunities. “Leg procedures tend to maximize” compromise vs. initiatives.

M: Generally true.

B: You have studied initiatives?

M: Over 900.

B: When do initiatives provide for compromise and building consensus in society?

M: I cannot say specifically, but in general it’s better to have informed deliberation, consensus building and compromise.

B: How many would you give where initiatives fit the above?

M: Maybe 3 or 4 or 5. Would have to do serious investigation to see how drafting done and campaign run.

B: You have done no such research?

M: Yes. I did large study of outcomes. Idealized picture of legislature. Legislatures do not always live up to those four opportunities. The institutional structure of the legislature set up for those four things, not initiative process.

B: If there is going to be any refinement, it will be in drafting because it cannot be amended once it’s out there?

M: In California, there is no opportunity to amend unless they pull it back.

B: How often has that happened in California?

M: Not infrequently.

B: When was last time?

M: I guess.

B: I’m not asking you to guess. I’m asking you to tell me the last time.

M: Many times it’s pulled back.

B: When was last time in CA that signatures were gathered and then proponents pulled back to make compromise?

M: Discussed in 2005 special, but did not happen.

B: Give me last time in California?

M: I can give you example in Colorado.

B: We’re talking about Ca. You wanted to talk about CA.

T: Objection, He’s badgering the witness.

Judge Walker: Overruled. This is cross-examination.

B: Good God man.

M: I don’t know.

B: Who is professor Bruce Kane?

M: Scholar at UC Berkeley.

B: Heading here says violating democratic norms. “Initiative process violates number of norms in democracy.” What were the norms you were referring to?

M: I’m trying to get the context here (paging through). I think it’s the norms in the paragraph above: competence, fairness, accountability (and one other).

B: Go back to your law review article. “In sum it is ironic that initiative process is considered purer democracy …when it violates democratic opportunities and procedural guarantees.”

M: I was talking about consensus building, etc. Not sure about procedural guarantees. Might have been openness. The four norms you were just talking about.

[UPDATE] 4:22

[Even I’m uncomfortable. Boies is just letting this guy hang himself—repeatedly—and twist in the winds of justice.]

B: How many states have constitutional amendments against same sex marriage?

M: About 30.

B: How many were by initiative?

M: I think ten. I believe about ten passed initiatives and the others were passed by state legislature.

B: You agree that there are 30 states that have constitutional bar.

M: Yes.

B: And every state that has bar on same sex marriage was submitted to a popular vote?

M: Yes.

B: Would you agree that every time this has come up for a popular vote it has passed?

M: No. Arizona defeated an initiative that bars same sex marriage, but ss marriage is not legal there.

B: In Colorado, were voters presented with an initiative to permit ss marriage?

M: Voted to bar same sex marriage.

B: In Arizona, did voters vote to bar ss marriage?

M: In Colorado, there were two options.

B: But you just testified that Colorado voted to bar ss marriage.

M: Two options.

Judge Walker: In Arizona or Colorado?

M: AZ passed bar of same sex marriage. Then legislature put another on the ballot.

B: Let me clarify for the court. In Colorado, voters voted to bar ss marriage. But in AZ they voted to bar ss marriage also?

M: Yes, but they voted not to the first time.

B: So they voted two times before they won?

M: Yes.

B: Amicus Brief by Professors Estridge and Kane. Let me ask you in this connection to look at page 7.

[UPDATE] 4:37

B: Prof. Kane talks about hyper-amendability of constitution. He cites Prop. 14 and 105. What are they?

M: 14 to which he refers was passed in 1954.

B: And that was to take equal housing rights away from blacks.

M: Kane says that unlike 8, 105 applied to entire population. And unlike 8, 14 found that discrimination was at base, but 8 is on its face.

B: Do you agree that discrimination is on its face with Prop. 8? 8? 8?

M: No. It defines marriage as between man and woman.

B: You’ve said that 8 treats gays and lesbians differently. As a political scientist, is it discrimination?

M: Differently, but not necessarily in the law.

B: Not as lawyer, but as political scientist, is there discrimination?

M: Makes a distinction between people so that under that definition is it discrimination

B: Just to tie that down, this is discrimination?

M: By that definition, yes.

B: Kane and Estridge say that this is discrimination. Do you agree?

M: I don’t agree with them.

B: They say that discrimination of Prop. 8 is on the face of Prop. 8. You told me that Prop.8 treats people differently and that is discrimination.

M: It creates a distinction between people.

B: We’re going backwards. I asked you if the definition you used is the definition that most political scientists use. You said you do not know.

M: Dictionary definition. Very common in scholarship to have different definitions.

B: Is there a definition that you have that would make this not discrimination.

M: Let me try to move this forward. It is my view that Prop. 8 makes distinction, but whether it is invidious discrimination or not, I don’t agree.

B: Prof. Kane and Estridge do not refer to invidious.

M: I think it’s implied.

[UPDATE] 5:20 Sorry about the delay. This last update got stuck in the tubes.

M: Gay and lesbians are minority and have been subject to prejudice and stereotyping, but I think that has gotten better.

B: And still today?

M: Like a lot of groups they face some stereotyping and prejudice.

B: They… Do you believe that gays and lesbians face more prejudice and stereotyping than AAs?

M: I cannot make that distinction. I have not done that research.

B: Do you think that lesbian and gays face more than women?

M: Same answer.

B: Granted that women face prejudice and stereotyping, do you still think that gays and lesbians face more prejudice and stereotyping?

M: Women still face prejudice and stereotyping.

B: Let me take gays out of it and just deal with lesbians. Do you believe that lesbians face at least as much stereotyping as women and more?

M: Yes.

B: Kane and Estridge say that proponents say that Prop. 8 required that schools teach that ss marriage is equal to hetero, which was false. That difference probably passed Prop. 8. Do you agree?

M: I see the sentence.

B: Now, I take it that…well let me ask you, do you have an opinion about the correctness of this statement?

Thompson: Object. I did not ask the witness about this in direct.

Judge Walker: Overruled.

B: Yes, I do have an opinion. There is a basis with respect to the curricular consequences of Prop. 8. There is a basis so I disagree with that. With respect to second clause, with regard to message’s impact on the outcome of the election, I don’t know.

B: If you don’t know. They make two statements. One is that Prop. 8 forces curriculum to reflect ss marriage.

M: Could be shown to have a basis.

B: Has anyone shown it to have a basis?

M: I think that proponent’s assertion is correct. I don’t know actually whether it would have happened or not, but there is a basis for it to happen.

B: Second, re: did this have a decisive difference, no opinion?

M: I can’t say.

M: If they said definitely, I would say I disagree. If possibly, might be true. If no difference, no opinion.

B: You don’t know whether what they say is right or not.

M: No basis for truth. No survey data to show why people voted for Prop. 8.

B: Are you aware of polling data on why people voted for Prop. 8?

M: I have seen no extensive data.

B: Have you seen any data?

M: I think I may have but I don’t recall.

B: Look at tab 78.

Judge Walker: As you do that, let me ask how you are doing in examination of this witness. You can see that it’s getting warm in here and our landlord shuts down the ventilation at 5:00pm.

B: I will not finish by 5:00PM and this is a convenient time to stop.

Judge Walker: Very well. We’ll resume at 0830.

Tags: , ,

237 Comments

  • 1. fiona64  |  January 25, 2010 at 9:03 am

    Oh boy … it looks like this will be a splendid example of "hoist on his own petard." I have been saying for *ages* that the initiative process here in CA (which was put in place to stop the Southern Pacific Railroad monopolies) is the root of the problem. When the CA Constitution has been amended 500+ times via the initiative process, I think we can all concur that something is wrong.

  • 2. JerseyJ9  |  January 25, 2010 at 9:04 am

    Even there "experts" sound like simple bigots! Amazing!

  • 3. Ben  |  January 25, 2010 at 9:04 am

    Does anyone else think this guy's writing is reminiscent of papers they got a D on in college?

  • 4. Chris  |  January 25, 2010 at 9:04 am

    This is like watching Ali box a 6th grader. Wow.

  • 5. Ann S.  |  January 25, 2010 at 9:04 am

    I'm certainly with you on that one, Fiona.

  • 6. David  |  January 25, 2010 at 9:05 am

    Thank you fiona64, for making this point, this has been premise, since moving to California about 6 years ago.
    Love,
    David

  • 7. Barb  |  January 25, 2010 at 9:06 am

    I hear coughing, sounds like Miller's about to cough up a furball. Is there at least a sketch artist in there. I would love to see the faces of the defending lawyers right now. If there faces aren't buried in the table in front of them.

  • 8. Spaniard  |  January 25, 2010 at 9:07 am

    wow, that "expert" is having the day of his life… and he might be wishing he had thought twice before accepting to be their "expert" on all these things, I think he's destroying his career as a researcher, he has no clue about anything!

  • 9. Andy W  |  January 25, 2010 at 9:08 am

    I think he writes stuff never thinking somebody is going to question it. Grill him baby, I'll take my Med Rare

  • 10. Soundboy_Jeff  |  January 25, 2010 at 9:08 am

    MAN! this guy is USELESS as a defense witness. not an 'expert' at anything, so far anyway…

    and he sounds like he's helping the plantiff's case more than the defense.

    seriously… this REALLY should've been on youtube, just to show what bigoted idiots the pro prop 8 people and their supporters are.

  • 11. Tom  |  January 25, 2010 at 9:08 am

    Ok – I got sucked in yet again on a horribly busy Monday. Amazing testimony today – see, you can make lies disappear. All you need to do is shine light on them. If you are so sure that your position is the right one, why wouldn't you be ok to show everything? Our side has been more than open and yet their side keeps trying to hide things. I believe that the only people that do this are hiding things for a reason. This is the reason murderers and rapists get let off – the legal system allows them to hide certain things. Luckily, in this case, all the ugly stuff is being put on display. Loving it.

  • 12. Barb  |  January 25, 2010 at 9:09 am

    I wonder if any of the other witnesses they have lined up are gonna want to get on the stand after this?

  • 13. pearlheartgtr  |  January 25, 2010 at 9:10 am

    I'm having visions of Ted Striker (Airplane) telling the story of Macho Grande and the passenger next to him commits suicide. I can see the defense lawyers loading guns and tying nooses right now.

  • 14. fiona64  |  January 25, 2010 at 9:10 am

    I'm not sure, but I think this guy may be one of only two people still willing to testify on behalf of the D/I.

  • 15. Chris  |  January 25, 2010 at 9:10 am

    The funny thing is how between Tam and Miller it seems like most of the defense's "evidence" comes from things they read on the internet, which were written by other groups affiliated with the defense.

    Like, "I read on the NOM web site that all gays are pedophiles, so therefore it is my informed, expert opinion based off of researching NOM."

  • 16. Chris  |  January 25, 2010 at 9:12 am

    I get the feeling they suddenly might "become afraid of putting themselves and their families in danger from rogue, terrorist gays" after watching this witness.

  • 17. Spaniard  |  January 25, 2010 at 9:12 am

    good question, Barb. I was thinking the same thing

  • 18. DonG  |  January 25, 2010 at 9:14 am

    The only other witness is Mr. David Blankenhorn. Mr. Blankenhorn is the founder and President of the Institute for American Values. He purports to be knowledgeable about the institution of marriage.

    He's are reputable as the current witness and has already been discounted by most psychologists and sociologists.

  • 19. Andy W  |  January 25, 2010 at 9:14 am

    On Twitter they are talking about badgering the witness, Prop8TrialTracker – we need an update.- please……

  • 20. Steffi  |  January 25, 2010 at 9:15 am

    I was thinking the same. he's totally risking his integrity…

  • 21. Dieter M.  |  January 25, 2010 at 9:16 am

    NOTE TO DEFENSE TEAM:
    Pants on the ground?..Pants on the ground?

    Lookin like a FOOL with your pants on the ground…LOL

  • 22. Christopher in San F  |  January 25, 2010 at 9:16 am

    it appears that the judge overruled the objection from prop 8 regarding badgering the witness and allowed our side to proceed….

  • 23. Chris  |  January 25, 2010 at 9:17 am

    The cost of a real time report is a loss in the court's verbosity. There are a lot of words flying around based on the official transcripts, particularly on source citations.

    I believe the blogger has no choice but to paraphrase and cut some content, so I would be hesitant to try to analyze something like the writing quality of the evidence.

  • 24. Ben  |  January 25, 2010 at 9:18 am

    It's like the enlightenment just never quite hit these folks and they're still in the Dark Age. I mean, the preacher told me gays are gonna eat my children, so it must be true. No matter that the preacher said that because the larger religious organization stands to gain MILLIONS from the $$ I give to "protect my children," what he tells me MUST still be true, because he's the preacher.

    I'm an expert on gays and lesbians. Of course, I've only looked at NOM and PM.com. But since they told me what I already thought, I didn't think it was necessary to look anywhere else.

    It's sad, really. I actually enjoy getting to have my own original thoughts from time to time. Those guys miss out on that.

  • 25. Brian  |  January 25, 2010 at 9:18 am

    I think it works best to have this blog and the one at FDL open in Firefox (or any other tabbed browser). They add a lot to each other and give a better idea of the testimony.

  • 26. fiona64  |  January 25, 2010 at 9:18 am

    Heh. The agency's website appears to be primarily focused on pimping his books.
    http://www.americanvalues.org/

    The list of his articles is almost incidental … although the first one is about "courtship," a ridiculous premise in which one is expected to know within one or two dates whether one wishes to marry the other party. Seriously! And, of course, no *kissing* or other hanky-panky in the meanwhile either …

  • 27. Charles  |  January 25, 2010 at 9:20 am

    Why do you think he's teaching at Nowhere University, Hicklohoma, USA?

    He graduated from Harvard, but i guess he graduated with barely a passing grade. maybe a legacy or smthing?

    (ps: I have nothing against oakies per se, it's just a convenient portmanteau :-) )

  • 28. Chris  |  January 25, 2010 at 9:20 am

    B: When was last time in CA that signatures were gathered and then proponents pulled back to make compromise?
    M: Discussed in 2005 special, but did not happen.
    B: Give me last time in California?
    M: I can give you example in Colorado.
    B: We’re talking about Ca. You wanted to talk about CA.

    This can't be real can it. Come on Rick. You're just messing with us. This feels like a script for Dumb and Dumber 2: Lloyd testifies against equality

  • 29. MikeN  |  January 25, 2010 at 9:20 am

    What I want to know is how he got a JD from Harvard and a PhD from Berkeley. He doesn't even seem to be knowledgeable about things he says are his expertise.

  • 30. Slade  |  January 25, 2010 at 9:20 am

    This is really painful to read. I almost feel bad for the witness. If I was him, I'd sue the Defendants for slander lol

  • 31. Gavin Turley  |  January 25, 2010 at 9:21 am

    Lol…he's badgering the witness! He's beating him up!! Tell him to get back on the field playing for his own team! Lol!!! Nice…but c'mon now…

  • 32. Brian  |  January 25, 2010 at 9:21 am

    "B: Good God man."

    My thoughts exactly!

  • 33. hearsay  |  January 25, 2010 at 9:22 am

    when it violates democratic opportunities and procedural guarantees.”

    M: I was talking about consensus building, etc. Not sure about procedural guarantees…

    Now he's arguing about stuff he wrote himself!

    "Good God man" for the win. Reminds me of, "At long last have you no decency sir," during the McCarthy hearings.

  • 34. robert K wright 1 of  |  January 25, 2010 at 9:23 am

    Not completely true, they have also called Frank Schubert, and our side objected. Not sure if they WILL call him, but as of this morning, he is on the list. See start of trial this morning, thread one.

  • 35. JonInSF  |  January 25, 2010 at 9:23 am

    I can see the defense lawyers loading guns and tying nooses right now.

    "The attorneys killing themselves? Over Macho Grande?"

    "No. I'll never be over Macho Grande."

  • 36. Andy W  |  January 25, 2010 at 9:23 am

    I think UC Berkeley needs an initiative to revoke his tenure.

    I hope this is just one of the many at Berkeley that is this bad.

  • 37. Ronnie  |  January 25, 2010 at 9:23 am

    "I guess"?????????????

    "Colorado"????????????

    "Objection"????????????

    "GOOD GOD MAN" (That will most likely wind up on an American Apparel T-shirt!)

    If I was the defense I would have said "Move to strike!"

    with a lisp……….hehehe

  • 38. Russell V  |  January 25, 2010 at 9:23 am

    Gimme the link, if you would please.

  • 39. Ray Harwick  |  January 25, 2010 at 9:24 am

    I think whomever supervised his dissertation should be publically shamed.

  • 40. Jhar  |  January 25, 2010 at 9:24 am

    Why the hell would they put up a witness who is so undeniably and unequivocally opposed to the initiative process, in case centered around rights that were taken away during such a process?

    Did they not vet this guy? Where were they during discovery?

    Idiots! The lot of them!

  • 41. PM, in the UK  |  January 25, 2010 at 9:25 am

    B: We’re talking about Ca. You wanted to talk about CA.

    T: Objection, He’s badgering the witness.

    Judge Walker: Overruled. This is cross-examination.

    B: Good God man.

    This court-case is brought to you by the team at Boston Legal…
    I believe The Shatner was born to play Boies in the light-entertainment production of this trial.

  • 42. Ray Harwick  |  January 25, 2010 at 9:25 am

    Excellent point, Chris.

  • 43. Barb  |  January 25, 2010 at 9:25 am

    I think the entire defense team has lost MUCH credibility. Bet they wished they'd never taken on this case now.

  • 44. Russell V  |  January 25, 2010 at 9:26 am

    Rob Reiner, while a long-time advocate for GLT rights, is there, taking notes, and storyboarding the 21st century's "Inherit the Wind". And if SNL doesn't pull some of this verbatum for next Sat's show, they are missing out on one of the greatest comedic opportunities of this (new) decade.

  • 45. Dave Parker  |  January 25, 2010 at 9:26 am

    Amazing. Thank heaven the Claremont colleges aren't technically connected to each other, because this testimony could make my Ph.D. from Claremont Grad School look bad.

    Recently, though, I've noticed (and it was true at Claremont) that political science departments have been recruiting conservatives hand over fist, and allowing more liberal students to become historians. I'll leave that without further comment.

  • 46. Sean  |  January 25, 2010 at 9:26 am

    I know! I laughed so hard at that! It sounds like something out of a movie!

  • 47. Spaniard  |  January 25, 2010 at 9:27 am

    good idea!
    but they don't mention when they look nervous, tired, or everybody laughs and i have to admit i love those small details too 😉 I love Rick's style!

  • 48. pearlheartgtr  |  January 25, 2010 at 9:27 am

    http://seminal.firedoglake.com/diary/26456

  • 49. Spaniard  |  January 25, 2010 at 9:28 am

    Rusell V: http://firedoglake.com/prop8trial/

  • 50. Chris  |  January 25, 2010 at 9:28 am

    Yeah, I loved that part.

  • 51. Jerry  |  January 25, 2010 at 9:29 am

    I've always been opposed to the balot initiative process because it makes it far too easy to short-circuit the Constitutionally intended legislative process.

  • 52. Ronnie  |  January 25, 2010 at 9:29 am

    I can't……. I can't……I thought Tam was funny but this guy!

    My face is covered in tears of laughter!

  • 53. David  |  January 25, 2010 at 9:30 am

    Yes, I was thinking the same thing…
    Love,
    David

  • 54. Dieter M.  |  January 25, 2010 at 9:31 am

    As we speak I am making my very own:
    "Good God man " tee-shirt…LOL

  • 55. Colt  |  January 25, 2010 at 9:31 am

    Did he really say "Good God man"???? LOL!!!

  • 56. Andy W  |  January 25, 2010 at 9:32 am

    Dieter M, that is funny :-)

  • 57. Beth  |  January 25, 2010 at 9:32 am

    Note that it isn't necessary for Boies to ask Miller whether he is in favor of Prop 8. Repeatedly a "tactic" of the defense to ask our experts whether they supported No on 8.

    Good God, Man!

    Indeed!

  • 58. fiona64  |  January 25, 2010 at 9:32 am

    Thanks, Robert. I had completely forgotten about Schubert.

  • 59. Ben  |  January 25, 2010 at 9:32 am

    I'm not talking about quality of writing, I'm talking about the utter childishness of his claims and "research." If I had written a paper about how the initiative process requires less compromise than representative democracy, it would have been returned asking me to delve deeper into the subject. That claim, while true, is just not deep enough to held up as legitimate, peer reviewed, academic research.

  • 60. Ronnie  |  January 25, 2010 at 9:33 am

    I'm waiting for Elle Woods to suddenly be confident and repeat "where you got in the shower?"

  • 61. rf  |  January 25, 2010 at 9:34 am

    Russell V – http://www.firedoglake.com – FDL

    there is a link in the blogroll on this site on the right. FDL has a big button for the Prop 8 trial with all the posts on its home page. Sometimes you do have to click on the Seminal link where the main guy Teddy posts if you're not seeing updates for a while. Sometimes they start blogging there before it gets linked to their main prop 8 page. Both sites (this one and FDL) are amazing!

  • 62. Chris  |  January 25, 2010 at 9:34 am

    I believe the problem is he's testifying a bit out of his area of expertise and came significantly unprepared. He's more of a direct democracy (initiative, referendum, and recall) guy.

    His two book publications with an author credit: http://www.cambridge.org/us/catalogue/catalogue.a
    http://www.amazon.com/New-Political-Geography-Cal

  • 63. Bearchewtoy75  |  January 25, 2010 at 9:35 am

    M: AZ passed bar of ss marriage. Then legislature put another on the ballot.
    B: Let me clarify for the court. In Colorado, voters voted to bar ss marriage. But in AZ they voted to bar ss marriage also?
    M: Yes, but they voted not to the first time.
    B: So they voted two times before they won?

    He needs to bring up the fact that in AZ, the first vote was more about not recognizing partnerships that were not marriage, even between straight couples. It was voted down. The second one was exclusively aimed at denying marriage to gay people! That's the one that passed!

  • 64. Jack  |  January 25, 2010 at 9:35 am

    While I don't live in CA, I know the politics very well for work. I agree with you about their initiative process.

    As bad as this witness is for the defense, I find it very ironic that his article statements regarding the initiative process are pretty accurate.

    I have always maintained that the initiative process violates the major tenets of our US Constitution. Representative democracy, and even our structure of government was designed to ensure that the minorities were protected from tyrannic rule of a larger majority. Prop 8 is case in point.

  • 65. JC  |  January 25, 2010 at 9:36 am

    Did you all see this? Pugno is on the offense….
    http://blogs.kqed.org/prop8/2010/01/25/judging-th

  • 66. Russell V  |  January 25, 2010 at 9:36 am

    Thanks for the link, both of you!!

  • 67. John  |  January 25, 2010 at 9:36 am

    Thanks for saying that Dave, I was feeling embarrassed about my degree from Pomona. Poor Prof. Miller, not his best day I'm sure.

  • 68. Barb  |  January 25, 2010 at 9:36 am

    Isn't Frank Schubert responsible for much of the false advertising that was brought in as evidence today? I wonder if it was brought in today in the event he testifies.

  • 69. Straight Ally #3008  |  January 25, 2010 at 9:37 am

    The scary thing is, he's teaching at a very good school. Claremont McKenna College came in 11th among the best liberal arts colleges in the 2010 U.S. News and World Report rankings.

  • 70. Russell V  |  January 25, 2010 at 9:39 am

    Saw that above; thanks for the add'l info! This is better than any fictional program every aired on TV. Quite the education!! It almost makes me happy I'm out of a job so I have time to follow it!!

  • 71. Variola  |  January 25, 2010 at 9:39 am

    I thought Miller was an expert in CA gov't and initiative history and yet he can't even remember the last time a CA initiative was pulled for compromise (if ever)? Seriously?

  • 72. John  |  January 25, 2010 at 9:40 am

    Looks like he's trying really hard not to admit that it's discrimination, and he's doing a poor job of it.

  • 73. Loren  |  January 25, 2010 at 9:41 am

    Even considering the plain stupid passage of Prop. 8, I didn't think of such criticisms of direct democracy as presented here.

    I have some learning to do.

  • 74. Jeff G.  |  January 25, 2010 at 9:42 am

    For a guy with a J.D. and a Ph.D., he sure is poorly-prepared to testify in the area he's supposed to be an expert in.

  • 75. Ronnie  |  January 25, 2010 at 9:42 am

    "it's implied"??????

    on the previous trial thread somebody said that we she stop making fun of this guy…….

    but how could you not?

  • 76. robert K wright 1 of  |  January 25, 2010 at 9:43 am

    M: Dictionary definition. Very common in scholarship to have different definitions.

    THis could come back to bite them, since they were arguing about the definition of gay and Lesbian. If their expert says it is common to have more than one definition, then it goes to say that it wouldn't be odd for their to be no consensus on the meaning of Gay and Lesbian…

  • 77. l8r_g8r  |  January 25, 2010 at 9:43 am

    This is sick and disgusting. Attack the judge even before the trial is over so that he knows that they will run a campaign against him if he rules against them.

    Attack the judge before the trial is over so that everyone who might possibly be on the fence on this issue will think that the trial is a farce.

    As a lawyer, I am extremely offended.

  • 78. Barb  |  January 25, 2010 at 9:43 am

    Right, written into the Arizona Constitution that marriage is only Between One Man and One Woman.

  • 79. hearsay  |  January 25, 2010 at 9:44 am

    He admits it's discrimination. He's trying to avoid admitting it's rooted in hate or religion. I bet that's the one thing the defense drilled into his little pea brain: Whatever you do, don't say it's because of hate or the church!

  • 80. Ryan Blazer  |  January 25, 2010 at 9:44 am

    Sorry, Couldn't resist.

    [youtube =http://www.youtube.com/watch?v=SY8uzqNi4sA&hl=en_US&fs=1&]

    Love,
    Ryan

  • 81. Chris  |  January 25, 2010 at 9:45 am

    Good point.

  • 82. Sandy  |  January 25, 2010 at 9:45 am

    Yes, me 5.
    Native Californian, we are trying to squeak through stuff based on low vote turnout and low info voters.
    Need 2/3 for a budget??? Serious issues…

  • 83. JonInSF  |  January 25, 2010 at 9:45 am

    This I think Is what is bothering me: I find it actively difficult to conceive that the defense team, after all the money that the LDS and RCC threw into the Yes8 campaign, would be incompetent or amateur. There MUST be something more afoot here.

    The main thing when the case goes to Appeals, is that nothing that was not brought up in the original case can be visited. But if the Yes8 people are planning on waging the real war in Appeals and SCOTUS… I'm still at a loss.

  • 84. l8r_g8r  |  January 25, 2010 at 9:45 am

    Beth,

    If you voted for Proposition 8, you're a normal human being, but if you voted against Proposition 8, you're an activist.

    Good God, Man!

  • 85. Jeff G.  |  January 25, 2010 at 9:46 am

    Here's an interesting article about the defense's other witness, David Blankenhorn: http://www.johncorvino.com/article_archive/31351….

  • 86. James  |  January 25, 2010 at 9:47 am

    Someone on youtube should copy the daily show's old segment with this testimony:

    "The Testimony of Kenneth Miller as Read By Children"

  • 87. Ronnie  |  January 25, 2010 at 9:48 am

    Also the fact the both merium webster dictionary(spelling) and dictionary.com define marriage is between a man and a woman as well as same sex marriage…..yeah?

    MOVE TO STRIKE!!!!!!

  • 88. Nick H  |  January 25, 2010 at 9:48 am

    That's just precious. I see the Prop8 people are continuing to nail themselves to an invisible cross, and claiming we're the ones holding the hammer…

  • 89. Alkanshel  |  January 25, 2010 at 9:48 am

    …Dude, I have friends that went to Claremont Mckenna (and its brother/sister schools). They aren't crap schools. Don't diss the school just because it has an idiot professor.

  • 90. Jack  |  January 25, 2010 at 9:49 am

    Didn't he also state earlier in his testimony that no initiative in CA had been used to take rights away from people. . .? Don't recall exactly because he wasn't claiming discrimination with 8. That is why I think I remember it.

    Now he is agreeing that Prop 14 was passed to based on discrimination to take equal housing rights away from AAs. . .

  • 91. Tom B.  |  January 25, 2010 at 9:49 am

    Isn't that a violation of some sort of professional courtesy? You can say all you want about a judge once a trial's over, but to call a judge biased while the trial is still ongoing…

    Can any lawyerly types educate me on this one? Can a lawyer basically impugn the impartiality of a judge while a trial is ongoing?

  • 92. Ann S.  |  January 25, 2010 at 9:49 am

    So this guy has tried to testify that LGBT people have political power. I get why they wanted that testimony.

    But they put up a guy who has written extensively about how initiatives create bad laws? I mean, DUH, but — why did they pick this guy? I can't figure it out.

  • 93. Ray Harwick  |  January 25, 2010 at 9:49 am

    B: Just to tie that down, this is discrimination?
    M: By that definition, yes.

    He just said Prop 8 was discriminatory. 'Cuze me. I need to go breath into a bag.

  • 94. Ronnie  |  January 25, 2010 at 9:50 am

    Move to strike!……. Unacceptable use of propaganda!

    heheheheheheh

  • 95. DonG  |  January 25, 2010 at 9:52 am

    He's a federal judge and is appointed for life. He doesn't have to worry about anyone running a campaign against him.

  • 96. Glenn I  |  January 25, 2010 at 9:52 am

    You don't need to remember anything you copied and pasted then put your name to.

  • 97. Steven  |  January 25, 2010 at 9:52 am

    …even with ALL of this (that is, how dumb, creepy, etc. the Prop. 8 side looks), I'll stick to my stance that if…and / or…when this makes its way to the SCOTUS…

    that the "ActivistJudgesFive" will ban SS marriage.

    Somehow…some way…doesn't matter what the laws have been, currently are, or might be…nothing will matter to them and they will flex their Activist authority and ban it.

  • 98. Alex Tsai  |  January 25, 2010 at 9:53 am

    Hmmm…I don't know there's a difference between "invidious discrimination" & say, "favorable discrimination (?)"?!

    Those words, "invidious" & "favorable (?)", are based on personal value or judgment, and therefore, it's biased. That's why we need the law & Constitution to protect the groups whom get discriminated against! Shame on those who try to justify the base of their discriminations.

    A discrimination is a discrimination, and we should not tolerate that!

  • 99. Devon  |  January 25, 2010 at 9:54 am

    I'm pretty sure that statement negates him being a witness for the defense, now that is just sad!

  • 100. David  |  January 25, 2010 at 9:54 am

    B: Prof. Kane and Estridge do not refer to invidious.

    M: I think it’s implied.

    Hmmm. implied, hmmm!

  • 101. Kate  |  January 25, 2010 at 9:55 am

    CA Prop 187 comes to mind, which was initially passed by the voters but then deemed unconstitutional by the courts.

  • 102. Glenn I  |  January 25, 2010 at 9:55 am

    There's John Yoo, author of the infamous torture memo. He works for UC Berkeley's Boalt Hall, the law school. I saw him on The Daily Show chuckling about how the people who signed the Geneva Accords didn't know what "torture" meant and how he had to define it for the Bush administration because, you know, nobody could figure it out otherwise!

  • 103. Loren  |  January 25, 2010 at 9:55 am

    "Making" fun? Prof. Miller's making all the fun, we're just pointing to it.

  • 104. Spaniard  |  January 25, 2010 at 9:55 am

    I wish i was in the same time zone! It's 1:52 am here, have to get up early tomorrow but can't stop reading! I'm learning a lot and i have to admit it's kind of entertaining to see/read Boies good work… I never thought I'd be entertained (and even less at this late hour) by a lawyer doing his/her job! :)

  • 105. David  |  January 25, 2010 at 9:55 am

    That's what I was thinking too! Thanks, Alex,

    Love,
    David

  • 106. tom  |  January 25, 2010 at 9:56 am

    This stuff cannot be going on in the court room today.. Is he sure he is blogging from the right place, and not the set for Saturday Night Live?

  • 107. Josh Travierso  |  January 25, 2010 at 9:56 am

    They've been left with the weakest testimonies of all their witnesses. I believe they are going either for a mis-trial, or looking for the best grounds of improper evidence for their appeal.

  • 108. Bob  |  January 25, 2010 at 9:56 am

    I can't wait to see how Pugno spins this train wreck.

  • 109. Sandy  |  January 25, 2010 at 9:58 am

    >>B: They say that discrimination of Prop. 8 is on the face of Prop. 8. You told me that Prop.8 treats people differently and that is discrimination.
    M: It creates a distinction between people.
    B: We’re going backwards. I asked you if the definition you used is the definition that most political scientists use. You said you do not know.
    M: Dictionary definition. Very common in scholarship to have different definitions.<<

    The word marriage also has different definitions…

  • 110. Devon  |  January 25, 2010 at 9:58 am

    "B: What about women?
    M: Women are stereotyped and prejudiced.
    B: Is it really your testimony that you can’t tell whether women face more or less than G&L?
    M: I think there’s a lot of anti-female stereotyping in our society today.
    B: I"m not disputing that. But coulnd’t women be as much an object of stereotyping as G&L?
    M: I don’t know.

    B: Let’s take gays out of it, then, how about women versus lesbians. Surely lesbians face more than other women?
    M: [mumbles]
    B: WHAT?
    M: yes, lesbians face more prejudice than other women"

    :)

  • 111. Sara  |  January 25, 2010 at 9:58 am

    Sadly, I agree. It is not such a good situation when you know that probably every judge on SCOTUS will go into that trial know exactly how they are going to vote, and will probably not pay any attention to what is actually argued in the trial. :(

  • 112. Glenn I  |  January 25, 2010 at 9:58 am

    I don't find it difficult at all. There is no good case against opening marriage to same sex couples. Therefore not even the best lawyer would be able to make one up.

    Judges who rule against gay people are predisposed to do so. The lawyers on the anti-gay side have never been any better than this. The judges just give them a pass because the judges are on their side.

  • 113. Soundboy_Jeff  |  January 25, 2010 at 9:59 am

    I predict serious tequila shots at hotel bar later this evening for mr. miller… drinking to forget.

  • 114. kenny  |  January 25, 2010 at 10:00 am

    judge said no…its called cross examination..

  • 115. DonG  |  January 25, 2010 at 10:00 am

    What do you base your opinion on concerning the SCOTUS? Why do you think Justice Kennedy will side with the conservatives? Why do you think Chief Justice Roberts will side with the conservatives?

  • 116. Brian D  |  January 25, 2010 at 10:01 am

    Word, Ronnie. So much word! That's one t-shirt I'd buy…hey gurl hey *snaps* :)

    Experts aren't paid to simply guess…we want their "expert opinion"…apparently this guy didn't get the memo…

  • 117. robert K wright 1 of  |  January 25, 2010 at 10:01 am

    see comment number 82

  • 118. Aaron  |  January 25, 2010 at 10:01 am

    I'm almost surprised at how poor the defense is doing. Could they be trying to lose in the CA court to take it to the federal level? I mean, their witnesses are almost laughable!

  • 119. Calvin  |  January 25, 2010 at 10:03 am

    …..Rick, I respect you for not freaking out and throwing your computer. I'd be incredibly frustrated right now….

  • 120. DM  |  January 25, 2010 at 10:03 am

    "Invidious." what a strange word choice. isn't it a synonym for "envious?"

  • 121. truthspew  |  January 25, 2010 at 10:03 am

    This is as I expected, the Prop 8 defendants have no case to stand on. Even their so called experts pretty much make our case for us.

  • 122. Brian D  |  January 25, 2010 at 10:03 am

    Legally Blonde…ahhh…good times. The musical is exquisite and kinda reminds me of this :)

  • 123. Ann S.  |  January 25, 2010 at 10:03 am

    Very interesting, Jeff, thank you.

    Love,
    Ann

  • 124. Rachel  |  January 25, 2010 at 10:03 am

    Good theory. But I think that after this stage, the other courts will be looking only at testimony given here. Not a good showing so far for the Prop 8 backers.

  • 125. activecitizen54  |  January 25, 2010 at 10:05 am

    Here's a great piece from JoeMyGod from this morning:
    [youtube =http://www.youtube.com/watch?v=sV5PbrTySxY&feature=player_embedded]

    We needed this during the campaign…

    The great news is….. Just look at all the comedy material and how effectively we all will have tools to discredit the Cults of Jesus in their campaign of Hate…. http://activecitizen54.wordpress.com/
    Keep up the great work…
    You've made my day.

  • 126. Ronnie  |  January 25, 2010 at 10:05 am

    I think we can all agree that "GOOD GOD MAN" is the official catch phrase of the this trail as of right now!

    LMAO!

  • 127. SF Bay  |  January 25, 2010 at 10:05 am

    I'm biting what's left of my nails and have broken the F5 key. I need more.

  • 128. Ann S.  |  January 25, 2010 at 10:05 am

    From thefreedictionary.com:

    in·vid·i·ous (n-vd-s)
    adj.
    1. Tending to rouse ill will, animosity, or resentment: invidious accusations.
    2. Containing or implying a slight; discriminatory: invidious distinctions.
    3. Envious.

  • 129. Glenn I  |  January 25, 2010 at 10:06 am

    Not all "discrimination" is illegal. We discriminate legally all the time – even in hiring. You choose the "best qualified" person for the job, right? That's discriminating between the qualified and the unqualified. If you discriminate between the white and the non-white, that's illegal discrimination.

    more love
    G

  • 130. robert K wright 1 of  |  January 25, 2010 at 10:06 am

    Invidious discrimination involves formally or informally classifying people into different groups and according the members of each group distinct, and typically unequal, treatments, rights and obligations without a rational justification for the different treatment. If there is rational justification for the different treatment, then the discrimination is not invidious. The criteria delineating the groups, such as gender, race, or class, determine the kind of discrimination.

  • 131. Shun  |  January 25, 2010 at 10:06 am

    How does it usually work? Like…would they repeat the whole trial when it goes to the Supreme Court or would they just look at evidence/testimony that were presented in this case?

  • 132. Tim  |  January 25, 2010 at 10:07 am

    Charles, I think that was uncalled for =/

    Claremont McKenna is in California, and it's in the top 20 liberal arts colleges.

    I don't think the expert knows much about LGBT, but he doesn't seem downright malicious as most of their side does. I know I would probably get murdered on the stand by Boies too…

  • 133. Jack  |  January 25, 2010 at 10:08 am

    Aaron, this is a federal court, not a California court.

    I also think it bears mentioning that Judge Walker is a Republican (Reagan) appointee to the bench.

  • 134. Kendall  |  January 25, 2010 at 10:08 am

    Ronnie FTW! ROFLMAO! Oh…so perfect….

    – A "Legally Blonde" fan

  • 135. Chris  |  January 25, 2010 at 10:08 am

    No doubt. My work is going to start wondering why I am asking them to replace my broken F-5 key for the 5th time this week :)

  • 136. Alex Tsai  |  January 25, 2010 at 10:09 am

    They might then frame themselves as the "victim" in this ridiculous, pro-gay, anti-Christ legal system, and ask "Joe"s & "Mary"s to support them for a revolt?

  • 137. Steven  |  January 25, 2010 at 10:09 am

    OH…and BTW, I would like to suggest that everyone post the link for the TrialTracker, well, just about everyplace.

    I continue to put it on(when the opportunity comes up):

    The Political Carnival http://www.thepoliticalcarnival.net/

    Democratic Underground http://www.democraticunderground.com/

    Think Progress http://thinkprogress.org/

    and

    Huffington Post http://www.huffingtonpost.com/

    I say…Knowledge is power…spread it around! :-)
    http://prop8trialtracker.com/

  • 138. Frijondi  |  January 25, 2010 at 10:09 am

    He wouldn't be the first stupid person to earn a degree from Harvard or Berkeley, and he won't be the last. There are always ways the less-than-outstanding can slither through.

  • 139. jrw  |  January 25, 2010 at 10:10 am

    So this is the best comment EVER!

  • 140. robert K wright 1 of  |  January 25, 2010 at 10:10 am

    sorry, the numbers are not static on the posts, here is the link:
    http://blogs.kqed.org/prop8/2010/01/25/judging-th

  • 141. Barb  |  January 25, 2010 at 10:11 am

    Alright! I SERIOUSLY want the

    Lesbians Love Boies!

    T-shirt. NOW!!!

  • 142. Ronnie  |  January 25, 2010 at 10:12 am

    Why not just use the mouse and click on the refresh circle arrow in the address bar?………that's what I do

  • 143. Bill  |  January 25, 2010 at 10:13 am

    Pugno and his team made a fatal error.

    They assumed God was on their side.

  • 144. Rachel  |  January 25, 2010 at 10:13 am

    I LIKE it!!!! Sign me up for two!

  • 145. robert K wright 1 of  |  January 25, 2010 at 10:14 am

    Don't know why not updated here, but they have adjourned until the morning. Some great stuff after where this ends with the invidious comment…

  • 146. DonG  |  January 25, 2010 at 10:15 am

    When you appeal, you appeal on the basis of the law–not on the f acts. The facts are determined by the trial judge (or a jury if there is one). So, if Judge Vaughn decides that gays are a "suspect" class, he has to (by law) determine that certain things are true according to the facts presented at the trial. On appeal, the appeals court could decide that the evidence did not support the finding, but it couldn't re-try the case.

  • 147. robert K wright 1 of  |  January 25, 2010 at 10:15 am

    Good Night my lovelies, see you in the morning. I have a husband due home for dinner in an hour, best get a move on. PEACE

  • 148. Barb  |  January 25, 2010 at 10:15 am

    Maybe Rick forgot to hit the 'submit' or 'apply' button.

  • 149. Jan  |  January 25, 2010 at 10:16 am

    Make it 2 more here!

  • 150. Rick Heintz  |  January 25, 2010 at 10:16 am

    Are they going to come in bear sizes?

  • 151. SF Bay  |  January 25, 2010 at 10:17 am

    well, you gotta tell us…what happened after the invidius commnet?

  • 152. Alkanshel  |  January 25, 2010 at 10:17 am

    Um, Miller works at Claremont, mate. He's also tenured at Claremont.

    He got his PhD at Berkeley, apparently.

    I don't actually think he's incompetent, though, just that he isn't actually an expert in what he claims to be an expert in. Which, I think, would qualify as some form of fraud…

  • 153. Frijondi  |  January 25, 2010 at 10:18 am

    No matter how sophisticated their political machine was, they're on shaky intellectual grounds. A lot of the stuff we're hearing from the defense sounds exactly like what you can find on Focus on the Family's website. FoF has swung a lot of elections — if I remember right, Amendment 2 in Colorado was James Dobson's baby — but their spokespeople don't do very well when confronted with facts and a rational argument.

    All the same, I share your uneasiness.

  • 154. Bill  |  January 25, 2010 at 10:18 am

    @ l8tr_g8tr

    Is this why Walker is allowing so much into evidence and such? So that when defense later (or not so later, as it swould seem) claims Walker was biased, there will be all of this evidence admitted that the 9th Circuit will consider???

    Would love your thought on that. Do you think we will get a fair shake from ANY court?

    Not asking 'will we win,' rather in your experience as an attorney, are courts ever truly unbiased?

  • 155. Colt  |  January 25, 2010 at 10:19 am

    We definitely need t-shirts. :)

  • 156. Chris  |  January 25, 2010 at 10:19 am

    Maybe the other side finally tied him up and hid him somewhere to prevent this testimony from getting out.

    If you can't stop the trial, you can try to stop the record of it.

  • 157. Rebecca  |  January 25, 2010 at 10:19 am

    I'll take one too!

  • 158. Nick H  |  January 25, 2010 at 10:21 am

    I really wish we could have sound clips of that moment. THIS is why they didn't want it televised! XD

  • 159. Barb  |  January 25, 2010 at 10:21 am

    @ Courage Campaign

    Another way for you to make money for the cause. Make us some shirts. I'd certainly buy a few too. Especially the Lesbians Love Boies, and from the looks of it, you could also do "Good God Man"

  • 160. Jack  |  January 25, 2010 at 10:22 am

    Seeing an SNL parody of this stuff would be great! I would love to see them do an entire show on it.

  • 161. PaulN  |  January 25, 2010 at 10:22 am

    "Does anyone else think this guy’s writing is reminiscent of papers they got a D on in college?"

    High school at best….maybe even junior high.

  • 162. Tiffany  |  January 25, 2010 at 10:25 am

    Rick, you are the BEST! Thank you for all you are doing to keep us up-to-date. Loving every minute of it!

  • 163. PM, in the UK  |  January 25, 2010 at 10:26 am

    Goodnight. ^_^
    We appreciate all your hard work.

  • 164. Ronnie  |  January 25, 2010 at 10:27 am

    I think maybe I started a movement!

    "GOOD GOD MAN!" tees all around in all sizes and for babies as well! awe shucks I'll throw in dog tees too!

  • 165. Ryan Blazer  |  January 25, 2010 at 10:28 am

    Touché 😉

  • 166. robert K wright 1 of  |  January 25, 2010 at 10:29 am

    He's posted it now. And you should check out the Firedoglake version two. This site does a great job, but the combination of both rounds out the picture much better. Where one misses something the other catches it.

  • 167. Charles  |  January 25, 2010 at 10:30 am

    I can attest first hand. I'm in a highly selective some would say elite college, and there are some (fortunately not that many) that make you wonder how they got there in the first place.

    But I guess with connections and/or money, it's not so difficult.

  • 168. Tom  |  January 25, 2010 at 10:32 am

    Thanks again Rick – another day you rocked it. So uncomfortable to read this but I was smiling from ear to ear. Would have loved to see him and Tam live though – see their reactions to questions and if they hesitated of flubbed. I feel like I am watching a trial on TV, where the plaintiff's lawyer is so sharp that he cuts the defense to bits. "Damages" starts tonight – maybe Patty Hewes would be a good comparison? Either way, great work today on your part. So proud that you are there for us.

  • 169. David  |  January 25, 2010 at 10:32 am

    Yes, thank you Rick and all for keeping us up-to-date – we really appreciate all of you and what you are doing!
    Love,
    David

  • 170. Mark  |  January 25, 2010 at 10:33 am

    Greeting fellow sagehen!

    I remember when I was back at Pomona and there were all sorts of jokes about the very conservative Claremont vs the more liberal Pomona and Pitzer.

  • 171. Spaniard  |  January 25, 2010 at 10:34 am

    I'm also saying good night to all of you, but for different reasons… like… I need to sleep! This has been an extremely interesting day at court to read…
    ps. it's 2:33 am here :)

  • 172. Gery  |  January 25, 2010 at 10:34 am

    I like the t-shirt idea a lot. Please post if/when available.

    I'm looking forward, as mentioned, to the re-enactment. Is it possible that could be quashed as well?

    See y'all tomorrow.

  • 173. Matthew S.  |  January 25, 2010 at 10:35 am

    I agree, Ben. But then, that's sort of the the evangelical Christian mindset in general, though, isn't it?

    I am generalizing here, but I would posit that the majority (certainly not all, but MOST) of evangelicals listen to what their church leaders tell them and don't bother to seek any information beyond it. "Well, if the pastor and the 2,000+ year old storybook that's been written and RE-written and translated and RE-translated an infinite number of times says it's so… it must be!" Case closed.

    If you can find somebody to validate your own views, why bother to listen to an opposing viewpoint? Thinking for oneself is all hard 'n stuff!

    Puh-leaze!

  • 174. Charles  |  January 25, 2010 at 10:35 am

    Hmm, sorry, my mistake. I remembered he taught somewhere else, not in california. Idk why.

  • 175. Shun  |  January 25, 2010 at 10:35 am

    So that would be the case for both the Ninth Circuit court and the Supreme Court?

  • 176. paulo  |  January 25, 2010 at 10:39 am

    Sorry but I can't resist. I just stopped for a quick drink on the way home at my gay friendly establishment of choice and heard this:

    "I'll have a Miller Lite and I don't mean that guy on the stand today in California"

  • 177. Linda  |  January 25, 2010 at 10:42 am

    It makes me uncomfortable, too. Can they REALLY be that inept? Seriously? They should be charged with contempt of court, IMHO; it does seem like they're trying to lose.

    Are they trying to make this whole trial look like a joke? News flash–it's NOT working. They are far too outclassed with Boies and Olson, et al, who are taking this case very seriously, and have done incredible preparation for it.

  • 178. Linda  |  January 25, 2010 at 10:42 am

    Excellent! Really, well done! Thanks for sharing this.

  • 179. Ray Harwick  |  January 25, 2010 at 10:44 am

    That's totally cool!!!!!!!!

  • 180. Ray Harwick  |  January 25, 2010 at 10:47 am

    If I could follow them around for the rest of my life, Boies and Olsen would never be able to buy a drink or pay for dinner for the rest of their lives. I'd grab the bill. I love these guys.

  • 181. Rebecca  |  January 25, 2010 at 10:48 am

    "B: Let’s take gays out of it, then, how about women versus lesbians. Surely lesbians face more than other women?
    M: [mumbles]
    B: WHAT?
    M: yes, lesbians face more prejudice than other women”

    That was so awesome!!!!

    The Defense is really lame.

  • 182. Sandy954  |  January 25, 2010 at 10:49 am

    They seem to be trying to speak to voters and speak to the choir, play the victim, set up the stage, keep the faithful sending money for other state's ballots. An old tactic that seems to work for elections. I find it amazing they think the videos should not be admitted??? That's part of the election to co-erse.
    I wonder how many voting yes on 8 really gave a rat's@ss until they started banging the drum against the scary, scary gays… a few "never thought about it much, but yeah that's the weddings I go to, M & F", or the specter of evil… or they stole my yard sign. Then of course… the church says…
    Yeah, I'm not surprised, but the judge has not yet ruled, the definition of prejudice is….

  • 183. Brad  |  January 25, 2010 at 10:49 am

    Thank God that She is on our side.

  • 184. Sandy954  |  January 25, 2010 at 10:50 am

    Uh huh, that's it in a nutshell…

  • 185. Alkanshel  |  January 25, 2010 at 10:54 am

    *chuckle* Nice.

  • 186. Ruth  |  January 25, 2010 at 10:56 am

    Could people please stop beating on Miller? He clearly has no expertise in this area and who knows what made him agree to be a witness for the defense. Perhaps he thought he'd be able to stick to the areas that he does know. But he doesn't appear to be a bigot like Pugno or a nutcase like Tam. According to ratemyprofessor.com, he's highly regarded as a teacher. Already there a couple of negative remarks on the site about him that don't appear to be from people who took his class. Maybe we can avoid being as horrid as the other side.

  • 187. Barb  |  January 25, 2010 at 10:57 am

    From their tweets on their protectmarriage.com blog, it looks like they are planning to blog that "SCOTUS defines political powerlessness as No Ability to Attract Lawmakers attention." and that Homosexuals clearly have California and Federal Political Power. AND that their experts (Miller?) showed predominant homosexual 'political power' support from local, statewide and federal elected officials, as well as labor org, major corporations, entertainment sectors.

    Boy are they living in a bubble.

  • 188. Linda  |  January 25, 2010 at 11:01 am

    T-SHIRTS! T-SHIRTS! T-SHIRTS!

    I also want one that says, 'My girlfriend loves Boies!' :)

  • 189. Woody  |  January 25, 2010 at 11:02 am

    But he couldn't name any initiatives that were recalled when asked directly! He can't even testify to his own area of expertise!

  • 190. Sandy954  |  January 25, 2010 at 11:02 am

    That's how they allow themselves to be "friendly" bigots.
    It's a cop out. While walking at our rally post prop 8, one person held a sign saying "stop the H8". One young woman was so upset by the sign, she screamed out the car window "it's not hate, STUPID!!!!"

    we laugh and laugh at that one!!!

  • 191. country lawyer  |  January 25, 2010 at 11:03 am

    Is "Estridge" William Eskridge, Yale Law School professor?

  • 192. Sandy954  |  January 25, 2010 at 11:04 am

    Did he pause, then swallow hard before he said the word… lesbian?

  • 193. Craig Steiner  |  January 25, 2010 at 11:05 am

    I don't know what I am supposed to do once this trial is over…. I am completely addicted to this!!

    As far as the defense witness looking like a blithering idiot…. two reasons: 1, Bois is just incredible; and 2, like everyone here already knows, there is literally ZERO evidence or actual fact that supports the denial of our rights. I do not believe the defense actually WANTS to lose. Impossible. These are god's warriors, and going forward on appeal, WAY better to have the precedent of a win under your belt than a loss, no question about it.

    But what would you do? No matter how brilliant you might be as an attorney, if you know that there is no factual, lawful basis for the discrimination you are fighting to defend, what else are you supposed to do?

    Who else could they have found as an expert witness on things that do not exist?

    THAT is exactly why they have tried everything to supress the trial becoming big news: because the big news is, they are all a bunch of hideous bigots and are now being fully exposed in a court of law.

    All I can say is, thank Jebus Bois and company are on OUR side and not theirs. If there is one attorney in the universe who might have created some semblance of a defense for them, it's probably Bois. But I'm not sure what even he could have done.

    This is just beyond riveting. I can hardly stand it! Seriously, what are we all gonna do once it's over??

    :-)

    — Craig.

  • 194. Woody  |  January 25, 2010 at 11:05 am

    I'd pay good money to see Bill Shatner in the re-enactments!

  • 195. Tim In Dallas  |  January 25, 2010 at 11:09 am

    Well, six of the nine are Roman Catholics and do, afterall, ultimately answer to the Pope.

  • 196. erasure25  |  January 25, 2010 at 11:13 am

    I completely agree with you. There is a reason the Senate requires 60 votes to move things along. I would love for there to be a public "filibuster" option where 40% of the voters can force debate on any initiative. Too many horrible laws squeak by with 51 or 52% only to wreak long term havoc.

  • 197. Kim  |  January 25, 2010 at 11:16 am

    He won't jeopardize his 'science' career, because he works at a liberal arts college and the main thing he does there is teaching. The research is a minor part. It just underlines how desperate they were for 'experts' that they took someone who was not affiliated with a research university and actually does research.

  • 198. Woody  |  January 25, 2010 at 11:19 am

    If a re-enactment can be quashed, 99% of the stuff on TruTV will go off the air!

  • 199. Straight Ally #3008  |  January 25, 2010 at 11:24 am

    Once upon a time, decisions like Brown v. Board of Education and Loving v. Virginia were decided unanimously. I think it will be 5-4 as well, with Kennedy holding the fate of the entire decision in his hands.

  • 200. Nick Griffin Miller  |  January 25, 2010 at 11:27 am

    ..and with that…

    GOOD GOD MAN!??

  • 201. Marlene Bomer  |  January 25, 2010 at 11:36 am

    I agree with you 1000% Josh! Either the bigots crying "oppression" because the "evil gays" frightened off our "experts" and this was all we had left, thus denying us a fair trial, or the Prop 8 bigots appeal, claiming incompetent counsel.

  • 202. Marlene Bomer  |  January 25, 2010 at 11:45 am

    You want to see a bunch of crapola shoveled up and sold as gold, go watch the propaganda film "Gay Rights, Special Rights"!

    I don't remember the "expert" ol' Louie Shelton put up there, but he made a ton of wild claims (gays eat X lbs of feces and X gallons of urine, and have XXX about of sex partners a year), ad nauseum!

    The sad part is, because this film was and still is shown to fundie churches where debate and discussion isn't allowed, and the pastor is put up there as god's messenger, so *everything* he says must be true! — means these lies keep spreading and spreading. That and the fact this "expert" has letters after his name, must mean what he says is god's truth!

  • 203. michael  |  January 25, 2010 at 11:46 am

    They picked a liberal for a reason folks. He just didn't do his homework that they gave him.

  • 204. Marlene Bomer  |  January 25, 2010 at 11:47 am

    Three words: George Walker Bush

  • 205. Marlene Bomer  |  January 25, 2010 at 11:51 am

    Let's not forget that SCOTUS shot down A2 in flames! Too bad the same political ideology of the Court's not there to hand the bigots another huge loss… It's going to come down to another 5-4 decision, unless bigot Scalia and his toady Thomas up and retire…

  • 206. Curt Rowlett  |  January 25, 2010 at 11:52 am

    activecitizen54: Thank you for posting that video; it was absolutely outstanding! Very nice work and I commend you.

  • 207. Ryan  |  January 25, 2010 at 11:54 am

    I really wish this project would focus less on concurrent commentary and more on attempting to transcribe the trial as accurately as possible. God knows I want the plaintiffs to win, but it would be a lot more enjoyable to read without all the bracketed comments. It makes me wonder how accurate the rest of the live-blogging is when so much time is spent opining and in such an extemporaneous manner.

  • 208. Jenny  |  January 25, 2010 at 12:01 pm

    He must have had those shots this morning, because he seems to have forgotten all of his "expertise".

  • 209. Deb  |  January 25, 2010 at 12:07 pm

    Sadly, I think today's expert witless… uh, WITNESS broke my brain.

    As my lifemate told me today "There's a lot of stupid in the country. And then there's the Arrogant Stupid we see in legislature and in courtrooms. One set you can talk to. The other doesn't even make good fertiliser."

    25 years together this month! Woohoo!

  • 210. Alkanshel  |  January 25, 2010 at 12:12 pm

    The problem is that he agreed to be an expert witness, but then did no homework on a topic that he clearly has no expertise in.

    Most rational people would probably shy away from trying to testify when their research and experience are mostly unrelated to the trial.

  • 211. Frijondi  |  January 25, 2010 at 12:38 pm

    Ruth, the mere fact that he's willing to associate himself with people like Tam and Pugno says quite a lot. He doesn't have to use the same rhetoric to be a bigot.

    If he really did not expect a rough cross-examination, he did not do his homework before agreeing to be a witness. That suggest that he is either phenomenally arrogant, phenomenally naive, or such a true believer in the Prop. 8 cause that he cannot anticipate how any of his statements might be challenged. None of this looks good.

    Personally, I think this kind of soft-spoken bigotry is a lot more damaging than Tam's or Pugno's — it flies under the radar more easily. Btw, I wouldn't dismiss Tam as crazy. If he's sane enough to function in society, he's sane enough to take responsibility for his views. There are a lot of people out there who think more or less like him, even if they don't say it aloud. I doubt they're all mentally ill — they're just wrong. Writing such people off as nutjobs makes it easy to ignore them. That's how we get blindsided on election day.

  • 212. rachel  |  January 25, 2010 at 12:38 pm

    ryan, if you'd like to read word-for-word transcripts taken by the court reporter, they can be found here:
    http://www.equalrightsfoundation.org/our-work/hearing-tr...

    i have been reading both the liveblogs and the transcripts the following day and have found these blogs to be highly accurate. you might be interested to know that even the official transcripts note when there is laughter in the courtroom.

    keep up the good work, everyone, and thank you thank you thank you!

    love,
    rachel http://www.mormonsformarriage.com

  • 213. Richard  |  January 25, 2010 at 12:41 pm

    Miller is joking, right?

  • 214. Felyx  |  January 25, 2010 at 12:42 pm

    Hey!!! I think the defence is doing pretty well…and I hope they bring this really knowledgeable expert to SCOTUS trial!!! His testamony is like gold…wrapped around our fingers!!

  • 215. Linda  |  January 25, 2010 at 12:43 pm

    I agree, Frijondi, Tam is NO nutcase. He's sly. Look at all the organizations he was involved in. He was a pivotal player in that campaign, never doubt it. He is much smarter, and much more fluent in English than he let on.

  • 216. Eric  |  January 25, 2010 at 12:55 pm

    Re: GOOD GOD MAN – I just absolutely spit up when I read that part. And I heard it in the voice of Higgins from Magnum PI.

  • 217. J. Stone  |  January 25, 2010 at 12:58 pm

    Full, official transcripts for all previous days of the trial can be found on website for American Foundation for Equal Rights. Personally, I enjoy the real-time preview I receive here first–whets my appetite for the following day.

  • 218. Urbain  |  January 25, 2010 at 1:24 pm

    Excellent video and points. I will put this up on my blog.

  • 219. Jane  |  January 25, 2010 at 1:24 pm

    What their witness proved: GLBTs are discriminated against and Pugno and his cronies would like to continue legally being allowed to do so.

    Notice Pugno hasn't put his blog up for today. He's probably reading all the comments here trying to figure out how he's going to spin it. LOL

  • 220. Urbain  |  January 25, 2010 at 1:25 pm

    I've put it up repeatedly at a 'controversial' site linked with my name. If you guys want to comment on some of the stories or add your own opinions pieces, do so. Lots of comments will trigger some search engine "juice."

  • 221. Callie  |  January 25, 2010 at 1:27 pm

    I thought I was the only one having a Star Trek flashback!!! LOL

  • 222. Callie  |  January 25, 2010 at 1:46 pm

    I was thinking the EXACT same thing when I read that! Great minds, eh?

  • 223. Callie  |  January 25, 2010 at 1:52 pm

    Just went up on my FB page!

  • 224. Callie  |  January 25, 2010 at 1:53 pm

    Teehee, I so want it!

  • 225. michael  |  January 25, 2010 at 1:55 pm

    Hey I have posted this on a few threads but:

    Found the video that we submitted today from the H8ers

    Posted it on our Facebook page that Calvin Started:
    http://www.facebook.com/group.php?gid=43024709571

  • 226. RebeccaRGB  |  January 25, 2010 at 2:07 pm

    YES!!! Add me to the list for Lesbians Love Boies! NOW!

    Love,
    Rebecca

  • 227. waxr  |  January 25, 2010 at 2:14 pm

    I haven't heard that slur since John F. Kennedy first ran for the presidency.

  • 228. Linda  |  January 25, 2010 at 2:19 pm

    This is why all this stuff HAS to become public knowledge. SCOTUS will only be held accountable if the public is informed.

  • 229. Linda  |  January 25, 2010 at 2:25 pm

    It's called WITHDRAWAL!!!!

    And I'm not looking forward to it…

  • 230. Tony Douglass in Ca  |  January 25, 2010 at 3:04 pm

    The WitLess for the Defense has Left the Building !!!!

  • 231. Stephen  |  January 25, 2010 at 3:59 pm

    OMG. This witness is a freakin' moron. He's talking in circles and I'm getting dizzy. If he's an expert witness, then I'm the Queen of Romania.

  • 232. Liveblogging Day 10: Part&hellip  |  January 25, 2010 at 4:02 pm

    […] Liveblogging Day 10: Part V Boies grilling Miller […]

  • 233. laweat  |  January 25, 2010 at 6:27 pm

    Outstanding!! Thanks so much for posting that.

  • 234. James Sweet  |  January 26, 2010 at 1:22 am

    I'm confused by people talking about "all" the bracketed commentary. I see like two sentences in this entire post!

  • 235. Mario  |  January 29, 2010 at 6:37 am

    I guess I don't understand this whole mess. If the "majority" of the people have "spoken" aboput gay marriage in the election, I would expect a plethora of experts and witnesses defending ss marriage. To see the "majority" victimizing themselves in the court just looks pathetic. Just looking at this whole trial objectively (pretending the subject matter is something you can look at objectively is what I mean) I would think that given the fact that a majority of the population voted for this they would feel safe and powerful in defending their decision. I don't know. If this trial does not go out way I think we should all just throw in the towel because the justice system will not be on our side, ever. In that case we should go violent and start burning down all these churches and organizations and really give them something to be scared about.

  • 236. Mario  |  January 29, 2010 at 6:38 am

    correction, I would expect a plethora of experts and witnesses defending oppposite sex marriage.

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