Patterico's Pontifications

8/16/2010

How Did We Get This Ninth Circuit Gay Marriage Panel?

Filed under: General — Patterico @ 10:53 pm



[See important UPDATE below.]

If we’re keeping track of predictions, I just blew one. I recently said:

The Ninth Circuit panel will be Wardlaw, Fischer, and Berzon — just as with the interlocutory appeal regarding the televising of the trial. Meaning they won’t reinstate the stay.

As it turns out, the judges who issued the stay were Leavy, Hawkins, and Thomas.

Beldar explains:

My prior understanding, however, was that the Ninth Circuit — like the Fifth, when I clerked for one of its judges way back in 1980-1981 — would automatically bypass the rotating motions panel when there was a subsequent appeal or emergency motion from a case that had already been heard by a prior Ninth Circuit panel, even if that was just a prior motions panel (as opposed to a panel that had heard a full appeal on the merits from a district court final judgment). Judges Wardlaw, Fisher, and Berzon — who, I assume, were the three members of an earlier motions panel — had heard and denied the earlier stay application last December in connection with Judge Walker’s original ruling permitting the trial to be televised, so my assumption (shared by many other legal pundits) was that those same three judges would hear this motion too.

That was my understanding, too — hence, the prediction.

So what happened? I think I have found the answer — sort of. The Ninth Circuit set a motions panel for August — which, as it happens, consists of the same judges who issued the stay:

During the month of August Judges Leavy, Hawkins, and Thomas are assigned to consider ready substantive motions matters. In the event of recusal or unavailability, we will draw another judge at random to consider the matter(s) in question.

Meet your judges. They consist of two Clinton appointees (Hawkins and Thomas) and a Reagan appointee (Leavy). Thomas, you should know, is not just any Democrat appointee — he is someone who, as Ed Whelan put it back in April, “occupies the exotic land of Reinhardt-istan.”

So: the ultimate result is unlikely to change. We’re probably looking at a 2-1 opinion, either denying standing to the intervenors, or denying the appeal on the merits.

Then it’s off to the Supremes, where I still believe that Prop. 8 supporters win 5-4.

That is, if it gets there quick. If it drags on — and Obama gets to replace, say, a Scalia — all bets are off.

UPDATE: Interesting. The L.A. Times says that another panel of judges is expected to rule on the appeal. I guess this really was just a motions panel.

I wonder if that means the original panel will hear the substantive appeal, or whether we will get a completely new panel. Leave a comment if you know.

17 Responses to “How Did We Get This Ninth Circuit Gay Marriage Panel?”

  1. If it drags on — and Obama gets to replace, say, a Scalia — all bets are off.

    I suspect, given Obama’s obvious desires for this country, that he won’t likely be replacing any conservative (or Kennedy) justices. If Obama gets to replace another justice, I suspect it would be Ginsberg.

    Further, I suspect the Obama justices have a big say in how Kennedy decides — their opinions influence Kennedy to decide contrary to them.

    But those are merely my suspicions.

    John Hitchcock (9e8ad9)

  2. John, what if one of the conservative jurists dies?

    Scalia is old, as noted. Kennedy is old, too. Thomas is old when you take his race into account.

    The Court has moved to the right over the course of Obama’s admin, which I think is pretty darn snazzy, but the votes have remained 4 libs, vs 4 cons vs 1 jackass. One of these cons could die and the impact on our lives would be real. I think it’s a shame so much is hanging on such a thin thread. People note that there are nuts out there trying to do harm to Obama, as there were to Bush. What if some DU reader went Pelican Brief on a conservative jurist?

    You’re right that Sotomayor probably annoys Kennedy, and Kagan probably annoys him a lot more, and Obama’s rudeness to the Court likely is far, far more annoying. If it were anyone but Kennedy we were talking about, I’d say this won’t make any difference. Alito likely will leave the personal attacks aside, for example.

    Anyway, damn Beldar is a badass. Circuit Clerkship? Nice. That’s more exclusive than playing for the majors or a Michelle Obama vacation assembly.

    Dustin (b54cdc)

  3. What do we know of hawkins?

    i looked around a little. i see a guy who went to an ordinary state school–nothing awfully suggestive of liberalism. yes, apointed by clinton, but clinton signed DOMA into law, so he wasn’t always liberal all the time. my point is are we just assuming clinton appointee = liberal, or do we have more to back it up?

    Aaron Worthing (A.W.) (f97997)

  4. John, what if one of the conservative jurists dies?

    I actually took this into consideration with my comment. This is the reason I selected Ginsberg as a possible Obama replacement. I suspect, due to health reasons, Ginsberg will be the next to be replaced. Age is less important in my matrix than health history.

    Regarding Kennedy, you’re spot on with your analysis of my comment. The extremism and utter disregard of practically everything that Sotomayor and Kagan and Obama provide will likely cause Kennedy to rethink his position. “If they agree with me, what with their antithetical ideology, my position must needs be wrong.” It may not be a disparate choice but rather a choice based on the anti-Constitutional ideologies of the three aforementioned.

    John Hitchcock (9e8ad9)

  5. A.W., here’s my rule of thumb:

    1) If the judge/justice is appointed by a Democrat, the judge/justice is a liberal.
    2) If the judge/justice is appointed by a Republican, the judge/justice can be anywhere from left-leaning to relatively conservative.
    3) While judges/justices can be, and are, far-left-wing extremists, no judges/justices can ever be far-right-wing, due to the fact the Republican Party can never get 60 Senators who are actual conservatives, much less 60 Senators who are merely Republican.

    So, a Clinton appointee (the most liberal since Carter — until Obama) will be a liberal, no questions asked.

    John Hitchcock (9e8ad9)

  6. You can have your health history; you might as well pick horses at the track based on the cuteness of their names. I will take males who carry too much weight, both physically and psychically.

    6 male judges on the Supreme Court, 4 of them overweight, 3 of those quite noticeably so. Consider those male judges who lived into their 90s and sat forever: active, fit, definitely not overweight, and all but one very happy warriors: Black, Douglas, Blackmun (bit of a fussbudget), and Stevens. Whereas Nino and Thomas carry some real poundage, and Roberts is heading the same direction. Plus dyspepsia does nothing to extend life, and that line-up packs some major attitudinal dyspepsia.

    Look at all this free business expandion advice Patterico is getting: He could add to the full line of Prop 8 wagers with a tontin on the Court.

    shooter (32dc25)

  7. shooter, please advise me when you’re ready to add something worth reading. Until such a time, I’ll overlook all your nonsense.

    Sincerely,
    Patrick Henry

    John Hitchcock (9e8ad9)

  8. John Hitchcock – Bush 43 in fact appointed more than one judge to the 9th who many here would see as distressingly moderate; and the main complaint about Clinton was that, after Hawkins just about everyone he nominated for the 9th was subject to threatened filibuster and in the result the entire Clinton crew, again, excepting Hawkins, would be seen by liberals as distressingly moderate.

    I also have a new straw hat I am willing to take a bite out of if Leavy actually sits on the panel that hears this: a perennial circuit leader in unavailabilities.

    shooter (32dc25)

  9. I have it on reliable authority that Mr. Justice Scalia has decreed in his Will that he be preserved with taxidermy and wheeled into SCOTUS sessions until Obama leaves office.

    Mr. Justice Thomas has left no such instructions, but promises to come back to haunt him.

    Adjoran (ec6a4b)

  10. did some quick studying on google scholar (not going to pay for legal research on free time). not alot i could find, but there is this.

    This is a dissent from denial of rehearing en banc, written by another judge, talking about don’t ask don’t tell. http://scholar.google.com/scholar_case?case=5358286666182358548&q=michael+hawkins+gay&hl=en&as_sdt=80000000000003

    that opinion strikes me as a little radical, asserting basically a right to free speech in the military. hawkins joined, but is that just from wishing to hear it en banc, or because he agrees with all of it? not sure. and kosinsky joined it too, so what is that.

    but then again, kosinsky, kosinsky also seemed to bless cameras in the courtroom in this case.

    Aaron Worthing (A.W.) (e7d72e)

  11. “Further, I suspect the Obama justices have a big say in how Kennedy decides — their opinions influence Kennedy to decide contrary to them.

    But those are merely my suspicions.

    Comment by John Hitchcock — 8/16/2010 @ 11:21 pm

    Just out of curiosity, why would you assume such a thing? I’m continually amazed at how many folks think John Roberts and the rest of the court’s conservatives have no ability to utilize interpersonal relationships in their case-making.

    With what you said, you leave the reader with the assumption that Scalia, Thomas, et al are a bunch of curmudgeons. Do we have any proof this is the case?

    Brad S (9f6740)

  12. Brad S – That seems to me to have not been a sleight directed at Roberts, etal but an observation that Kagan and Sotomayor are at best, unimpressive.

    JD (bbb18c)

  13. shooter living proof
    more than one scum-suck dimwit
    on that gassy knoll

    ColonelHaiku (2deed7)

  14. Sotomayor and Kagan, as with many of Obama’s other
    appointees, seem to be stunted in their interpersonal skills, not to mention their intellectual debts, Roberts, was said to have remarked scornfully of the argument that one attorney had to defend re a previous case by Sotomayor

    ian cormac (8e4d9a)

  15. yeah, i am sorry but one of the things i positively liked about kagan was her lead footed inability to persuade anyone. she single handedly blew Citizens United, which of course was a good thing for the rest of us.

    i came out against her nomination in the end, because i also think she is slow. she’s like Obama. everyone says she is smart. her resume says she is smart. but nothing she says or does gives me that “wow s/he is sharp! kind of moment.”

    Aaron Worthing (A.W.) (e7d72e)

  16. What if other same-sex marriage cases appear before the Court at the same time the Prop. 8 case does, especially from states where no one has the right to enter into a person of the same sex “an officially recognized and protected family relationship” with “the constitutional incidents of marriage”.

    Michael Ejercito (249c90)


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