March 30, 2003
That's our DA

Just one thing before I call it a night. I see that our very own District Attorney Chuck Rosenthal has been arguing the state's case in the sodomy case that's before the Supreme Court. Apparently, he didn't do a very good job:

After watching the arguments, longtime court reporters wrote analyses comparing Rosenthal's performance unfavorably with that of his much more seasoned opponent, Paul Smith.

The New York Times' Linda Greenhouse wrote that the argument "proved to be a mismatch of advocates to a degree rarely seen at the court."

Stephen Henderson of Knight Ridder Newspapers listed among low points in Rosenthal's argument his response to a question from Justice Ruth Bader Ginsburg about whether Texas bars gays from adopting children. (It does not.) "I don't know," Rosenthal replied.

Henderson wrote that Rosenthal's response "underscored how poorly his argument was going," and that the DA "had a difficult time articulating a rationale for the law."

USA Today's Joan Biskupic called the arguments "surprisingly lopsided," noting that Rosenthal "struggled" to defend the law and "had trouble answering questions about what harm the 30-year-old statute seeks to prevent."

Even Justice Antonin Scalia, who along with Chief Justice William Rehnquist made a mighty attempt to bolster Rosenthal's case, squinched up his face at one point and admitted, "I don't understand your argument."

Heh. I don't know if Rosenthal was simply playing to his base, if he was trying to regain some dignity after the Bradford debacle, or if he sincerely believed it was his job to make the public argument. Whatever the case, it's got his stamp on it now.

UPDATE: I'll never catch up on all the reading I missed while on vacation, but thanks to Ginger's comment, I found this post, which in turn points to this post, both of which neatly sum up why the law that DA Rosenthal is trying to bolster has no basis in rationality. Go check them out.

Posted by Charles Kuffner on March 30, 2003 to Legal matters | TrackBack

I actually saw some people over on Matt Yglesias' blog arguing that he must be in favor of overturning the statute because he argued it so incompetently. I reject this idea, of course, but apparently the argument really was that bad.

Posted by: Ginger on March 30, 2003 7:24 PM

I ask this as an academic matter more than anything: I wonder how much of a difference oral argument makes in the Court's decisionmaking?

I've always sort of had the impression that the members of the Court are using their questions more to score points with the other members of the Court than actually to solicit information from the people arguing. I don't know if that's the right impression because I've never been a judicial behavior student (just the text of the cases, please, and I'll leave the hard stuff to others!). Anyone here know of any good studies on the matter?

Posted by: Kevin Whited on March 31, 2003 8:26 AM

I can't cite any studies, nor can I remember who said it, but one thing I have heard about oral arguments is that while they can't win a losing case, they can kill one that might otherwise win.

I'll admit to hoping that's true so Rosenthal's bad argument can sink this bad law.

Posted by: Ginger on March 31, 2003 10:37 AM

Keep in mind he only had to sway two justices.

Scalia (and probably Thomas and Rhenquist) would outlaw non-procreative sex if they could find a case to hang the decision on.

Posted by: Charles M on March 31, 2003 11:43 AM