Patterico's Pontifications


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.

Ninth Circuit Stays Gay Marriages Until December

Filed under: General — Patterico @ 5:16 pm

Hot Air has the full text of the order. More updates soon.

UPDATE: I meant December, not September. Headline fixed.

What Can Be Done About the Increasing Worthlessness of Your Vote?

Filed under: General — Patterico @ 12:02 am

The core ideas for the following essay were conceived by a loyal reader. Like many of you, he feels that he is at a crossroads, and has an agonizing dilemma. If you read this post, I think you will understand.

Please understand: I do not, by writing this essay, advocate violating any law, or engaging in any violent acts. When I say I am not advocating violence, I mean it. I don’t even want you to swat a fly. If you do swat a fly after reading this essay, you have misread the piece.

Over time, a dollar is worth less with every passing decade. The candy bar that cost your grandfather 1 or 2 cents in 1930 costs you 95 cents now. What you may not realize is that your vote is also worth less with each passing decade.

There are at least three factors that have caused this devaluation in your vote.

Protection — The well-documented tools used by incumbents to protect their seats have made it increasingly difficult to vote them out. Gerrymandering creates safe districts where incumbents need not spend as much money as their opponents to protect their interests — and their seats. They use the money and privileges that come with their office to convince dullards to vote for them. In California in particular, the safety of incumbents’ seats has become a joke, that renders efforts to oust them quixotic at best — because of the protection that incumbents have from being voted out of office. In addition, in a presidential election the makeup of blue states and red states means that most votes simply don’t matter. A small handful of undecideds in a small group of swing states decides everything for the rest of us.

Dilution — Over time, as our population increases, your vote becomes worth less and less. This problem is exacerbated by factors such as voter fraud. Oh, I know: the liberals all assure us that there is no such thing. But let’s just take one likely rich vein of illegal votes: votes cast by illegal immigrants. What’s that, you say? Votes cast by illegal immigrants? Yes. Estimates say that there are anywhere from 10 million to 18 million illegal immigrants in the country. This means millions are of voting age. What’s more, many of them are experts at obtaining false documents, allowing them to work, drive, and participate in all other aspects of civic life. Do we really think that none of them vote? None? Let’s go with a conservative estimate of 10,000,000 illegal immigrants. If only one percent of them vote — just one percent! — that’s 100,000 illegal votes. That is voter fraud on a massive scale — certainly enough to tip a close election. This sort of thing dilutes your vote.

Negation — Let’s say that by some miracle, your vote negotiates the minefield of the first two obstacles discussed above. Like a lone sperm cell at the end of its improbable journey, your vote surmounts the obstacles in its way, and ends up having meaning. Let’s say, for example, that you end up successfully passing a law that says your state is finally going to do something about illegal immigration — or that your state is going to preserve the traditional view of marriage. Guess what happens now? That’s right: you may end up finding the results of your vote challenged in court. For example, on gay marriage, the vote of 7 million Americans was overturned by the overreaching of a single federal judge, who misstated the strength of the arguments advanced by the law’s defenders, and who arguably has a stake in the outcome, after hearing a trial where the nominal defendants (the Governor and Attorney General) refused to fulfill their obligation to defend the law. In Arizona, portions of an immigration law were stayed after the Mexican government filed an amicus brief — as if Mexico has more say in how Arizona should handle immigration issues than Arizona.

The increasing devaluation of your vote, due to the above three factors, is a fundamental problem that threatens the very stability of our democracy.

The importance of the purity and sanctity of the vote in American could be analogized to the importance of the liver in the body. Yes, there are impurities in the system, but when you have a meaningful vote (or a working liver), in theory it cleans everything out. When your vote means something, anything can happen in an election.

The compact that holds us all together is the idea that we all have an equal shot to change the system when it fails us. And make no mistake: the system is failing us — and worse, it is failing our children, whose votes will be devalued not only by the above factors, but by the disastrous financial policies that we seem powerless to stop, which will circumscribe our children’s choices and render their votes an ever-increasing nullity.

When we look back at our forebears — those people so enraged by taxation without representation that they threw tea into Boston harbor — how do you think they would feel now? Would they passively accept the increased impotence of our citizenry? Or would they be angrier today than they were back then?

Is it silly to consider this question? After all, their pictures adorn the wall on every second-grade classroom in the country. Yet we seem to proceed on the assumption that the outrages that motivated them to revolution constituted a unique set of circumstances that is unlikely to recur. But is that really true?

Thanks to the above trends, we have less democracy now than we have ever had in this country.

What is to be done about this? It seems that we have two choices. One is to simply continue to take it. And the other is to do something. And if we are to do something, what would that be??

To say the solution lies at the ballot box, given the above trends, and the argument of this essay, seems foolish. Voting for the lesser of two evils is, of course, better than voting for the greater. But is it actually satisfactory?

At what point, in a country founded on the principle that there can be no taxation without representation, do we say enough is enough? At what point do we conclude that we essentially have no representation — that voting is simply a Soviet-bloc style formality, such as we had in Iraq under Saddam, in Cuba under Fidel, or the USSR under Brezhnev?

At what point do we conclude that this exercise in democracy is merely a ceremony without meaning?

And when we get to that point, what do we do?

The one thing I know is: we can’t do anything illegal or violent. Even swatting a fly.

Which leaves us what other option?


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