Patterico's Pontifications

8/17/2010

L.A. Times Refuses to Tell Readers That Gay Marriage Stay Was Approved by Panel Including Two Clinton-Appointed Judges

Filed under: Dog Trainer — Patterico @ 7:27 am



A little touch of bias for you in the L.A. Times article on the gay marriage stay:

The 9th Circuit panel, which legal analysts said included a conservative, a moderate and a liberal, also indicated that the court has serious questions about whether the Proposition 8 sponsors have legal authority to appeal Walker’s conclusions about the constitutionality of the ban.

No mention of who appointed these judges, so I will just tell you: it’s two Clinton appointees and one Reagan appointee. Which indicates that a couple of Clinton appointees found possible merit to the appeal.

I love this:

UC Irvine Law School Dean Erwin Chemerinsky said it was “understandable” that the court “would want to preserve the status quo” pending a final ruling.

But he said he believed Monday’s order could not “be reconciled with well-established law in terms of what is required for a stay.” To block the effect of a ruling, an appealing party must show that it is likely to prevail on appeal and that it will suffer irreparable harm unless the ruling is blocked.

Yeah, it’s a real head-scratcher. Maybe the article could note that the stay could be reconciled with well-established law, if the court thinks that the marriage defenders are likely to prevail, and can show they would suffer irreparable harm.

Of course, all these questions are rather moot now, in light of this line from the article:

The panel said the court would hear the Proposition 8 challenge on an expedited basis and hold arguments the week of Dec. 6. Another panel of three judges is expected to rule on the appeal.

Hmmm. Does anyone know who will be on the final panel?

22 Responses to “L.A. Times Refuses to Tell Readers That Gay Marriage Stay Was Approved by Panel Including Two Clinton-Appointed Judges”

  1. “UC Irvine Law School Dean Erwin Chemerinsky” is living up (or is it down) to expectations. He was appointed/unappointed/then appointed again to be Dean because of concern for his politics. Now it appears he is willing to tell half-truths about the law in service to a political agenda.

    Just what you are looking for in a LAW SCHOOL DEAN.

    in_awe (44fed5)

  2. well, its not like UCI is a real school….

    redc1c4 (fb8750)

  3. It’s all about the spin, baby!

    Icy Texan (4f3a8e)

  4. Meanwhile, the L.A. Times is taking on the powerful Teachers Union, even incurring the threat of a boycott from a union. But you won’t read about it here at Patterico, as it violates his black-and-white, the L.A.-Times-is-a-liberal-trash-newspaper meme.

    Sally (00e5c6)

  5. Sally, why don’t you start a blog? Patterico has sometimes pointed out when the LA Times does cover a story contrary to how a right winger would predict, but really, who cares if they aren’t absolutely always, in your words, liberal trash? I don’t think anyone said they were.

    If you can correct one of his actual criticisms, that would be different. Hell, he’s probably cover your story too if you tipped him.

    Dustin (b54cdc)

  6. Could be worse. You could live here in Kansas City and if your sources were limited to the local McClatchy rag you wouldn’t know about the stay or the mosque issue.

    kansas (7b4374)

  7. Imagine, for a moment, what the story would look like if the panel consisted of 2 Reagan appointees and a Bush appointee.

    JD (4fc476)

  8. Sally – Does the L.A. Times know you are commenting on a blog from work?

    daleyrocks (940075)

  9. Leavy gets off the panel — and without even having to show the unavailability card. I would like to just chalk up another W, but this call was way too easy.

    Here are some specific features of the panel that WILL hear this appeal I would give odds on:

    1. At least one member will be female (likely only one; the 9th is not overpopulated with females).

    2. One member will be single-never-married (-not- that-there’s-anything-wrong-with-that).

    3. At least two members will be from California (not much stretch there).

    4. One member-not-named-Carlos-Bea (who, besides, was born in 1934) will be from San Francisco (so one of, but not both, Berzon and Fletcher).

    5. Two members will have been appointed by Dem presidents (again not much stretch: almost two-thirds were appointed by Carter and Clinton).

    6. All members will have been born since 1940.

    7. No one connected with the 9th will publicly admit to any contrivance to reach points 1 thru 6.

    shooter (32dc25)

  10. shooter – Those are distressingly moderate predictions.

    daleyrocks (940075)

  11. What do you want to bet that Reinhardt will somehow get included, even though he’s on Senior status?

    I actually expect that the 9th Circuit will vacate based on standing issues rather than touch on the matter at hand. Does anyone know what would happen if a Legislative act was overturned by a court and the Governor and AG refused to appeal? Would a legislator have standing? If so, I think that the CA Constitution has “the People” retaining all legislative rights, and only delegating them to the legislature, which might add to standing.

    Kevin Murphy (73dcc9)

  12. I actually expect that the 9th Circuit will vacate based on standing issues rather than touch on the matter at hand. Does anyone know what would happen if a Legislative act was overturned by a court and the Governor and AG refused to appeal? Would a legislator have standing? If so, I think that the CA Constitution has “the People” retaining all legislative rights, and only delegating them to the legislature, which might add to standing.

    So what happens if the 9th Circuit hears an appeal from a related case, say Smelt v. United States, and issues a ruling that undermines the legal basis for the Prop. 8 ruling?

    Or what if the Supreme Court hears either In the Matter of the Marriage of J.B. and H.B. or Bonilla v. Hurst and issues a ruling that undermines the legal basis for the Prop. 8 ruling?

    Michael Ejercito (249c90)

  13. You are dead right on this one, Patterico. The message is “I will uphold the rule of law and my opponent will not.” That is what is so disgusting about the Democratic position here and that is why it is indefensible– regardless of one’s position on gay marriage.

    Lets hope someone in the Whitman campaign is paying attention.

    Jeremy (f6c149)

  14. daleyrocks @ 10: Yeah, sorry about that; but I did mention giving odds. Except for the exactor; that one has to be straight up.

    Kevin Murphy @ 11: On the first – what are you bidding? The Romanian El Jefe would never allow it.

    On the second, this is really novel ground. There have been a number of instances of the Obama DOJ under Holder carrying on with positions set while Bush was in charge and Mukasey was in the stall, from which one can take the impression that they put up the best defense they are able despite maybe a less-than-whole-hearted commitment (eg. Oregon case on the Muslim charity; the Massachusetts case on DOMA), which at least show a philosophical commitment to the idea of defending legislation. I don’t hang the Governator with this call so much as the Wannabeator: there are several states right now where the chief executive and the state AG are taking different positions on challenging Obamacare.

    But this case is particularly special, as the California Supreme Court ruled one way before the law went in the other direction via popular vote rather than an initiative in the legislature, and that I think provides even Brown an out separate and apart from politics.

    The interim stay notwithstanding, I remain of the view that there are ways to obtain standing where parties are granted intervenor, standing then left to pick up the bag when the nominal defendants leave the field.

    I also remain of the view that the grounds for a stay are missing — yet I am persuaded by Patterico (among others) that it’s actually defensible in these peculiar circumstances, on some broad public policy basis (which, of course, was left unarticulated). To paraphrase Nino Scalia, I’m already over it.

    (Double sour grapes there: I’m not in the market for a spousal unit; and if I was, neither the arc of personal history nor current California law suggests impediments.)

    shooter (32dc25)

  15. Btw, they have also expedited the appeal for imperial county.

    http://volokh.com/2010/08/17/ninth-circuit-expedites-second-prop-8-appeal/

    Aaron Worthing (A.W.) (f97997)

  16. A.W. – As I wrote: a lot of ways …
    We may end up seeing them all.

    shooter (32dc25)

  17. I dunno about you folks in the 9th but over here in the 2nd Circuit we don’t go changing our judicial panels every time someone sneezes. Can this truly me correct; one panel hears emergency appeals during the trial, another panel hears the application for a stay pending appeal and yet a 3rd panel actually hears the appeal? Will a 4th panel be required to issue the decision the 3 panel reaches on appeal? Is this normal for the 9th?

    max (2f2a28)

  18. > Hmmm. Does anyone know who will be on the final panel?

    Hmmmm…. Could it be…. Satan?

    :oP

    Li'l ol' Church Lady... (9eeb86)

  19. > Will a 4th panel be required to issue the decision the 3 panel reaches on appeal?

    Not only that, but there will be a 5th panel to type it up, a 6th panel to answer questions on it, a 7th panel to do the rounds making speeches about the decision, and an 8th panel to clean up the offices after all the above.

    This IS union territory we’re talking about, jack!

    Li'l ol' Church Lady... (9eeb86)

  20. Patterico asked, “Does anyone know who will be on the final panel?”

    I’ve got a supplemental post up, based on my email correspondence with Prof. Rick Hasen. If I understand the Ninth Circuit’s Standing Orders manual correctly — I’m not terribly confident that I do — the case either has been, or is about to be, assigned to a panel for the briefing and oral argument that’s already been directed on Monday and Tuesday by the motions panel, but we won’t know who it is until about a week before the oral argument (which is set for early December). I also don’t know whether it will go to a panel already scheduled (or at least scheduled to be scheduled) to be hearing oral argument in other appeals that day at that courthouse, or to a special panel drawn and assembled just for this case.

    Beldar (a47d40)

  21. From the motions panel’s ruling on Monday: “This appeal shall be calendared during the week of December 6, 2010, at The James R. Browning Courthouse in San Francisco, California.” From the specification of the Ninth Circuit HQ courthouse, the specification of an entire week (rather than a specific day), and the choice of a regular work-week (avoiding nearby holidays) on which the Ninth Circuit would almost certainly have at least one panel, and maybe more, hearing other oral arguments in San Francisco anyway, that strikes me as what the motions panel would say if they wanted the Clerk to assign the case at random to a random panel already scheduled (or scheduled to be scheduled) to hear other cases that week as well.

    Beldar (a47d40)

  22. I’ve never had any respect for Chemerinsky, not merely because I suffered through a Con Law class taught by his ex-wife, but mostly because he’s a hack.

    SPQR (26be8b)


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