[Guest post by Aaron Worthing; if you have tips, please send them here.]
The defenders of Proposition 8 must feel a bit like Custer at Little Big Horn right about now. As you might know, their appeal has gone to a panel of the Ninth circuit. By my count, there are 26 judges in the Ninth Circuit, but in most cases, the appeal is heard by a panel of three judges. Occasionally there is a rehearing en banc, which means by the entire slate, but as you might imagine that is kind of rare.
So who are going to hear this appeal? Stephen Reinhardt, Michael D. Hawkins, and N. Randy Smith. Ed Whelan gives you the ideological break down of the three:
Reinhardt (appointed by President Carter in 1980) may well be the most aggressive liberal judicial activist in the nation—and the most reversed judge in history. Hawkins, a 1994 Clinton appointee, is also regularly on the Left on the Ninth Circuit. Smith, who was appointed by President George W. Bush in 2007, is much more of a judicial conservative.
So Reinhardt is probably a lost cause, a man who rules very liberally and isn’t troubled overly much by the prospect of being reversed, apparently. So by default defenders of Prop 8 will be pinning their hopes on Hawkins, probably mainly hoping they can convince him not to make new law.
But this isn’t all bad. I wonder how convincing a victory involving Reinhardt would actually be to the Supreme Court. But it certainly does increase the likelihood that the Ninth Circuit will force the Supreme Court to confront this issue.
[Posted and authored by Aaron Worthing.]