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Watch: Video from yesterday’s Perry hearings at the 9th Circuit

9th Circuit Court of Appeals Prop 8 trial

By Jacob Combs

Thanks to Stra8Grandmother in the comments from my earlier piece for pointing out that the video of yesterday’s hearings is now available on the 9th Circuit’s website.  The first hearing, regarding the tapes, can be found here, and the hearing regarding the motion to vacate can be found here.  They’re also embedded below.

First the arguments about releasing the tapes:

And the arguments about the motion to vacate:


  • 1. Sagesse  |  December 9, 2011 at 4:13 pm


  • 2. Dee  |  December 9, 2011 at 4:18 pm

    And there's the value of video. Watch as Judge Smith nods along as Boies responds to his questions.

  • 3. juliecason (JC)  |  December 9, 2011 at 4:23 pm

    Boy, Chuck does have a meltdown, doesn't he?

  • 4. Eddie89  |  December 9, 2011 at 4:46 pm

    If you can't pound the facts, pound the table! Which is what Mr. Cooper almost did at his final rebuttal. He was air pounding and air poking the judges in the chest!

  • 5. MightyAcorn  |  December 10, 2011 at 8:31 am

    He totes wanted to threaten them with Hell. The justices essentially said, ha ha, we're the law, ha ha.

  • 6. Derek Williams  |  December 9, 2011 at 4:59 pm

    Just watched the recusal video. Move over Perry Mason. This was deeply fascinating. The judges went for the jugular in terms of clarification of evidence and argument adduced by each counsel.

    I loved the free exchange of respectful conversation, which turned minutiae on their head and back up again. No stone was left unturned.

    Entertaining moments too, especially the judicial observation, "some might argue that a relationship of 8 years might make marriage less likely", provoking laughter in the courtroom.

    Weakest was Cooper by a nautical mile, and he finished with a desperateness of passion inversely proportional to the substance of his brief. I hope we don't create a new sub class of sore losers over this. We'd better take Hillary Clinton's advice and keep a constellation of conversations going.

    Loved the parting quip, "Well, let's hope however it comes out, it won't be a dark day [for jurisprudence]".

  • 7. Jim  |  December 10, 2011 at 8:50 am

    that last comment made me laugh out loud too!

  • 8. Str8Grandmother  |  December 9, 2011 at 5:14 pm

    I wonder how tall Theresa Stewart is? She sure is a petite little thing, with a big strong voice and a mind sharp as a whip. I enjoyed her forceful comments about the blatant discrimination that sexual minorities face. What did she say? Something like gays and lesbains are not inferior?

    Comparing Olson to Boies you might say Boies did a better job than Olson but then again Olson had the harder case. Boies had established cases to cite and Olson didn't. On the tapes there has not been a similar court case Olson could cite therefore he had the harder job. I sure did love it when Judge Smith pounded on Cooper. Yesterday I was a little anxious about vacating the ruling but after watching the video I am much more confident of a win.

  • 9. Josh  |  December 9, 2011 at 5:48 pm

    Re Motion to Vacate: Although I think Judge Walker ruled correctly in this case, it would have been less contentious if he had not taken it. I think any judge would have ruled the same way based on the facts of this case. It seems like the quality of the ruling should be used to help determine impartiality. If Judge Walker was biased, wouldn't his ruling be filled with flimsy reasons to strike down Prop 8?

    I'm just so sick of all the arguments and bullshit delaying this case.

  • 10. Str8Grandmother  |  December 9, 2011 at 6:33 pm

    I wonder if Judge Walker ever regrets telling the press about his relationship?

  • 11. allen  |  December 9, 2011 at 10:02 pm

    I've wondered too but I doubt it. Something tells me Walker was aware of the consequence and I believe Walker had the foresight to see proponent's challenge on the horizon. It outlines the unfairness of Prop 8 and Prop 8 supporters and maybe Walker knew these hearings would show it. When Reinhardt was baffled how the institution of marriage can be harmed without individual marriages being impacted.

  • 12. grod  |  December 10, 2011 at 3:51 pm

    Or the playing of a few seconds of the videotape. Having been the Chief Judge since 2004, you might have thought that he would have been more discerning. Perhaps, his actions were deliberate. Re the press Str8Grandmother, had you speculated that Walker was given a choice: either you disclose, or we will disclose and seek your reaction to the disclosure.

  • 13. Derek Williams  |  December 9, 2011 at 7:03 pm

    Although I agree it would have been more straightforward to have had a straight judge refereeing this case, I think this has worked out much better by far for us in the long run, because the debate has gone to the heart of the homophobic reasons for Proposition 8, the impartiality of minority judges, and guarantees under the Constitution.

    The proponents stop one sentence short of saying "we hate gays", but every gesture, every nuance, every bit of ersatz evidence they adduce screams homophobia from the rooftops. They're devoid of legal precendent.

    I was especially delighted by the way the judges reflected Cooper's arguments back to him, so he got to hear how illogical his case sounds to everyone else.

    We have managed to try three cases for the price of one here:
    1. the Tyranny of the Majority
    2. the default impartiality of judges
    3. guarantee of equality under the Constitution

    So wonderful to see American Justice in action. What brilliant people they are.

  • 14. Alex  |  December 9, 2011 at 6:52 pm

    If they toss out Walkers ruling I pray there is riots.

  • 15. Steven  |  December 9, 2011 at 7:29 pm

    About every fair minded legal experts including conservative legal experts say they won't throw out Judge Walker's decision based on the questions the justices asked the lawyers.

  • 16. Phil L  |  December 9, 2011 at 6:54 pm

    Watched the recusal video just now. Maybe we should all send Chuck Cooper some cheese wheels. He could sure use some to go with all of that whine.


  • 17. Str8Grandmother  |  December 9, 2011 at 7:07 pm

    great idea, I'll raise you one
    🙂 🙂

  • 18. Steven  |  December 9, 2011 at 7:37 pm

    Cooper Whine Collection,,,

  • 19. Steven  |  December 9, 2011 at 7:35 pm

    I think the justices "made most funny comments" when Chucky Cooper was up there,. and he knew he is in deep hole by these arguments…

  • 20. Steven  |  December 9, 2011 at 7:44 pm

    Maybe not. Being in denial is very powerful thing to overcome.. unless $$ is involved

  • 21. Drpatrick1  |  December 9, 2011 at 8:54 pm

    It has been said in other posts, but I was struck while watching the VIDEOS of the oral arguments with the irony that they were talking about releasing the VIDEOS! It is clear to both sides that there is public interest in this case (14 million people voted on the issue for both sides, scores of millions were spent, the live logging from both sides, etc) so clearly the public is not being served with the continued sealing in this case. They won't unseal, but we all, and I believe even they all, believe these tapes should be released to the public.

    My biggest regret in them winning that much less significant argument, is that I'm going to have to read gallager gloating about it. She will undoubtedly make it into much more than it was. I used to think she was simply passionate but wrong…now I think that she really is pure evil who willingly lies and distorts to fool others.

  • 22. Str8Grandmother  |  December 10, 2011 at 3:32 am

    Me too Drpatrik1 what you said, "I used to think she was simply passionate but wrong…now I think that she really is pure evil who willingly lies and distorts to fool others. "
    Maggie, Brian, NOM et al definitely operate in the Win at ANY Cost mode.
    Jeremy Hooper has a good story on this today

    I wish to heck I knew who was funding NOM because Maggie & Co. could not be doing the damage they do if they didn't have the money to do it. We know it is not a grass roots organization but astro turf who are the donors? What about those court cases, the one in Maine that said they had to disclose their donors according to the election laws in Maine. Does anybody remember/know the status of those "NOM Discolse your Donors" court cases?

  • 23. loaferguy  |  December 10, 2011 at 4:37 am

    Who is funding NOM? Allow me to provide a couple of links:


  • 24. Sagesse  |  December 10, 2011 at 6:35 am

    It is on my wish list to have NOM declared a hate group by SPLC, and I often wonder how much weight they give to friends and affiliates with extreme views that NOM can channel just by linking. I was gratified to see that Jennifer Roeback Morse was NOM's official blogger at the hearing yesterday. Don't want them to be able to distance themselves from her.

  • 25. Str8Grandmother  |  December 10, 2011 at 8:19 am

    Ohhhhh Sagesse, THAT! is a very good observation about "Jennifer Roeback Morse was NOM's official blogger at the hearing yesterday."
    I never thought of that.

  • 26. Mark  |  December 10, 2011 at 6:33 am

    It was so refreshing to see the Judges chew Mr. Cooper, and spit him out…

  • 27. Jim  |  December 10, 2011 at 8:49 am

    I loved the Judges final comment on Cooper in the recusal hearing "Let's hope it won't be a dark day" so funny!

  • 28. Steven  |  December 10, 2011 at 11:33 am

    Yeah, They are so ready to hand down their decisions.. it sounds like they are going to uphold Judge Walker's decision matter what.. including Justice Smith. They are laughing at him!!

  • 29. Derek Williams  |  December 10, 2011 at 12:58 pm

    While in one sense, it's fun to watch these guys get knocked down, I'd like to reflect again on a key admonition in Hillary Clinton's momentous address to the United Nations. This I believe is incredibly important, because by winning this battle, we will not be dancing on the grave of homophobia, but merely provoking stupendously funded retaliation, unless we seek again and again to have a conversation with our adversaries, who are not all vainglorious evil-doers by any means:

    "The fourth issue is what history teaches us about how we make progress towards rights for all. Progress starts with honest discussion. Now, there are some who say and believe that all gay people are pedophiles, that homosexuality is a disease that can be caught or cured, or that gays recruit others to become gay. Well, these notions are simply not true. They are also unlikely to disappear if those who promote or accept them are dismissed out of hand rather than invited to share their fears and concerns. No one has ever abandoned a belief because he was forced to do so."

  • 30. Bob Barnes  |  December 10, 2011 at 1:35 pm

    In the recusal case, towards the end, did everyone hear Cooper calling gays a minority? It's now in testimony that he believes we are a minority.

  • 31. Derek Williams  |  December 10, 2011 at 4:01 pm

    I think it will work very much in our favour if the Court rules against the release of the tapes for the following reasons:

    1. It will have shown the proponents behaving as though they have something to hide, such that would damage their case if released.
    2. It will be a small win for them that hardly impacts on the central marriage equality issue, because the written version of the transcript has not been sealed. This small win will be a consolation prize for their far bigger loss if the Court finds that Judge Walker did not have to recuse himself from the Proposition 8 Constitutional hearing.
    3. It will underpin the importance of the binding nature of a lawful promise made by a judge, one that we may ourselves seek to call out in a future legal situation

  • 32. Reformed  |  December 10, 2011 at 6:40 pm

    Is there any merit to the idea that the tapes could be released with a video equivalent of redaction. The majority of it was (I have to assume here of course) judges, lawyers, plaintiff's, and their witnesses. As i understand, the witnesses for the defendants were just 2 and 1 might not even be objecting to the release. The portions involving the objecting witness could be cut and replaced with on screen excerpts from the official transcripts. All the claimed harm to the witness is eliminated and continued objection from the defendant organization would illustrate how clearly they just want to hide the fact from the public that they didnt put on avery good case, that they didnt have any facts, and that Judge Walker presided over the trial fairly. That is to say, why should the entire recording remain under seal, when the arguments shows that only a small portion would be related to the proponents unfounded concerns. Wouldnt it be reasonable that whatever judge Walker indicated regarding the broadcasting of the trial, that would only need to apply to that portion of the trial that was of concern to the concerned party?

  • 33. _BK_  |  December 11, 2011 at 12:56 am

    Interesting thought, thanks for posting.

  • 34. Carpool Cookie  |  December 12, 2011 at 12:30 pm

    Oh boy, someone goes all Drama Queen at the end of their rebutal.

    Was that thgeir attempt at an Academy Award clip??

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