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Are Ted Olsen And David Boies Just Better Than We Are?

Via AL there is an interesting post at PrawfsBlawg on the new suit by Ted Olsen and David Boies that challenges Prop 8 on Constitutional grounds.

I just read the complaint and think it's a total crapshoot, as the issues are framed as purely ones of Due Process and Equal Protection under the United States Constitution.

Professor Araiza questions the timing and motive of the suit, and notes that legal activists in the trenches are not too pleased that two huge Supreme Court bigshots have jumped into the fray:

I have got to assume that Olson and Boies picked this cause, and only then went looking for clients. Indeed, Olson's comments yesterday support this interpretation, which of course jibes with what we all know about high-profile lawyers like these two -- a lot of their work is all about causes, not individual clients per se.

If that's true then it's hard to avoid the conclusion that Olson and Boies have intervened in the strategy directed by other cause lawyers -- among others, the ones quoted in the Times article as expressing concern and even annoyance about the lawsuit -- who have made gay rights their lives' work. (Hence the title of this post.) At best this strikes me as naive; at worst (again leaving aside the cynical political explanation) it strikes me as an arrogant hijacking of a long-term process worked out by someone else. If Thurgood Marshall were still alive he would probably react to this lawsuit by expressing gratitude for the unpopularity of civil rights litigation in the 1930's: at least he didn't have to fend off others' attempts to bring a school desegregation case to the Court before the time was ripe.

I know a little about Boies and litigated with him (the 2000 recount) and against him (on a few commercial matters). I know many lawyers who now work with him. He's very skilled and impressive but can't just wave a magic wand and line up the votes on such a squirrely legal issue.

Olsen is a whole other can of worms, but I have to assume he's sincere and wants to win this on the merits.

Still, it's not a good sign that they apparently did not coordinate this filing with the folks who are litigating these issues on a daily basis.

As well-regarded as those two advocates are, I just don't see that factor adding a whole lot to this issue. Query if it will even make it to the Supremes, assuming the district court bonks it and the 9th affirms.

Either way there will be lots of pro bono hours racked up at those two firms.

Full post as published by South Florida Lawyers on May 29, 2009 (boomark / email).