About 40 minutes into the standing discussion, Judge Smith and Judge Reinhardt rake anti-Prop 8 "super lawyer" David Boies over the coals. Go watch it yourself on C-span. But here's an informal summary of a truly beautiful moment:
Judge Smith : Does the Governor have the power to veto this initiative? Does the attorney general?
Judge Smith: So the Attorney General and governor's decision have essentially nullifed the considerable effort it took to pass this legislation, if they don't appeal? . . .The Attorney General and Governor with no ability to nullify acts of the people and then by not appealing they do it (nullify it)" . . .
Boise: I agree that is so, but its true in every standing case"
Judge Reinhardt enters the discussion with this thought: ". . .That does not seem to be consistent with the intiative system, where the people are allowed to pass a measure. . ."
Boies: I think there is a different issue after a [trial]
Judge Reinhardt "Isn't this contrary to a system where the governor is not allowed to veto this measure but he is allowed in effect to veto it by refusing to defend it?"
Boise: ". . .the U.S. Supreme Court has had this many times, the fact is there is no-one to defend does not give standing"
Judge Reinhardt then suggests the thing to do is ask the California Supreme Court whether under California law those who propose an initiative have standing.
Boies says something about why he disagrees with that.
Judge Smith: any California law directly on point? If so I will go look at it.
Long, long awkard pause by David Boies.
Fun to watch!