precedent we had was Bowers v. Hardwick,
which was an atrocious case for gay rights.
We had an uphill battle all of the way.
Q: When you spoke to us a few years ago,
you mentioned the moment when Justice
Anthony Kennedy asked his first question
of your opponent: “Has there been a law
as terrible as this?” [Laughs]
A: That’s when I felt we were going to win.
I’m still of the view that, in the end, you
can win difficult cases if you have good
facts, or if, like on that particular citizen
initiative, people overreach. It’s a little like
the “personhood” amendment that got
turned down in Mississippi? That kind of
a citizen initiative is in some respects the
easiest to defeat—even if you’ve got a lot
of law going against you. So we won the
Amendment 2 case primarily because it
was such an overreach and the court had
to find a way to justify overruling it.
Q: An overreach, but three Supreme Court
justices still voted in favor of it.
A: That just shows you that, though the facts
were so much in the plaintiffs’ favor, it still
wasn’t a sure winner. We worked as hard as
we could to put together a case that had the
best facts we could find. That’s one of the
things that’s interesting about the Health
Care Act cases going through the courts
now. They’re all going through in an abstract
sense. There aren’t any facts because it
hasn’t gone into effect yet.
Anyway, that’s a very long answer to why
I found the practice of law fascinating. I’ve
just had some fascinating cases to work
on; and because I’m a sole practitioner, I’ve
been able to sit down and figure out, “OK, if
I were judging this case, what would I want
to hear and what would it take for the court
to rule in my favor?” As opposed to: “Well,
there are five lawyers, and three of them
have totally different views, and you have
to somehow accommodate them.” When
you accommodate that much, sometimes a
case gets muddy. And I’ve worked on some
cases with teams of people where what we
ended up with was pretty muddy.
Q: Such as?
A: One cert petition before the U.S.
Supreme Court not so long ago out of the
10th Circuit over whether a church could
be built in an area where the zoning was
unclear and the county had said the church
couldn’t expand. It was raising issues that
all kinds of people who have been litigating
First Amendment religion issues wanted
to raise. But there were so many of them
involved in this that I thought we ended up
with a pretty muddy product. There wasn’t
anything wrong with it. It’s just nobody’s
clear view came through.
Q: Earlier you mentioned that you often
sit down and think, “How would a judge
decide this case?” Was your time on the
bench helpful in that—
A: Invaluable. [On the bench] you see
how cases get resolved. And these are
resolutions not just by one person—those
are harder to predict—but by a group of
people. Normally you’ll come up with
something that is not on either extreme,
and usually closer to the middle, so you
begin to see where compromises are
made, and after awhile people deciding
things in groups tend to not push their
own personal views quite as much.
Q: You were appointed to the Colorado
Supreme Court in ’79. Was that your first
judicial appointment?
Yes.
Q: What was that experience like?
A: I don’t think not having been a judge
was significant. You don’t have to rule on
questions right in front of you, you can
