The federal bench, collectively, just shed a few IQ points with the retirement of Richard Posner from the United States Court of Appeals. And when Donald Trump names a replacement, that collective IQ will drop another few points, no doubt.
In tribute to Posner, I’m posting the oral arguments during which he destroyed two lawyers — one from Indiana and one from Wisconsin — who argued that their states’ bans on same-sex marriage were constitutionally valid. Posner was having none of it, and his attack on the lawyers’ reasoning would ultimately form the basis of much of Justice Anthony Kennedy’s majority opinion in Obergefell v Hodges, the case requiring that same-sex marriage be permitted nationwide.
Under withering attack from Posner, the lawyer for Indiana lost his cool and the lawyer for Wisconsin lost his nerve. They both left with their bar cards in tatters, their reputations badly diminished in the eyes of their colleagues and constituents.
The first 30-minute segment of each argument is well worth listening to.
The lawyer for Indiana went first. Here are some highlights (this is just a small sampling) from Posner, followed by audio:
- “No, answer my question. Wouldn’t the children want their [same-sex] parents to be married?”
- [About the psychological health and welfare of children] “It’s a matter of indifference to you.”
- “Yeah, I’m going to interrupt you, so you’ll just have to be patient.”
- “These children would be better off if their parents could marry. No? Isn’t that obvious?”
- “You’ve lost me.”
- “Look, come on now. You’re going in circles.”
- “Sure, but you’re forgetting everything else.”
- “What is this pathetic — you’ve got 10,000 children living in foster care in Indiana. Don’t you want to get them adopted?”
- “It’s arbitrary. It doesn’t serve any public — why are you allowing all these sterile people to get married? Why are you doing that if you’re so concerned with procreation?”
- [During rebuttal] “What evidence? Evidence? You know, dealing with facts.”
- “I regard it as absurd. You say it’s self-evident.”
And here are some highlights of the Wisconsin argument, followed by audio:
- “You have no idea. Okay.”
- “Why are all these obstacles strewn in the path of these people? I don’t get it.”
- “Why? It doesn’t have a reason? It doesn’t need a reason? Or what?”
- “We’ve been doing this stupid thing for 100 years, 1000 years; we’ll keep doing it because it’s a tradition. You wouldn’t make that argument.”
- “I didn’t get anything out of your brief that sounded like a reason.”
- “What if men stopped shaking hands, right? It’d be the end of the nation, right?”
- “What else? Is that it?”
- “That’s your tradition argument. It’s feeble. Look, they could have trotted out Edmund Burke in the Loving case, right? What’s the difference?”
- [About the state’s interest in banning same-sex marriage] “What experience? It’s based on hate, isn’t it? No? You don’t think there’s a history of rather savage discrimination against homosexuals in the United States and the rest of the world?”
- “Look! Answer my question! Who is being helped by this law, if anyone?”
- “You don’t know anything.”
- [After the lawyer points out that the yellow light is on, a second judge on the panel says to the lawyer, about that yellow light] “It won’t save you.”
Judge Posner is a classic. There will never be another like him.