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Ninth Circuit Judicial Panel Line-Up Looks Bad for Prop 8 Supporters

The judicial panel for the Ninth Circuit Court of Appeals hearing in the Prop 8 challenge has been announced. The judges are Michael D. Hawkins, and N. Randy Smith, and Stephen Reinhardt. 

Writes conservative legal analyst Ed Whelan at the National Review: Prop8

"As regular Bench Memos readers know, 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. With two hard-core liberals, the panel is a fairly typical Ninth Circuit draw—which is to say, a bad one for supporters of Prop 8."

Tweets Reuters reporter Dan Levine:

"9th circuit panel for #prop8 is out: Reinhardt, Hawkins and NR Smith. So it will likely go 2-1 affirming Judge Walker's ruling... Reinhardt is such a lightning rod, I bet the Gibson Dunn legal team isn't so happy he wound up on their #prop8 panel..."

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  1. On the issue of standing, things could go either way, but on the merits, looks like a you can bet on a 2-1 split in favor of the good guys. While I'd prefer they rule the PropH8 supporters don't have standing to appeal, my gut tells me they will grant them standing, but rule against them on the merits and that we are headed for a rehearing of the merits en banc by a larger panel of the 9th Circuit.

    Posted by: Craig | Nov 29, 2010 12:12:01 PM

  2. Does this mean they will affirm Walker's original ruling (sending the whole issue to the Supreme Court) or just deny the standing for Prop 8 supporters to sue at all?

    Posted by: George | Nov 29, 2010 12:47:01 PM

  3. I sure hope for a unanimous ruling! And no, the next appeal would be to the 9th District en banc. Then the Supremes. As far as appeals go.

    Posted by: AKChris | Nov 29, 2010 12:58:50 PM

  4. A Reinhardt opinion on the merits requiring marriage equality would be a particular lightning rod for the Supreme Court. If they denied the appeal on standing it would leave the lower court order in effect (allowing marriage) and put the Supreme Court conservatives in a difficult position, as they have tried to limit standing generally. It all comes down to Justice Kennedy in the end.

    Posted by: Mike | Nov 29, 2010 1:02:00 PM

  5. Judge Walker is conservative. The pro-marriage legal team is half conservative. The case is compelling. We win on the facts. Reducing this issue to liberal v conservative should be offensive to everyone.

    Posted by: Dana chilton | Nov 29, 2010 1:11:02 PM

  6. @DANA CHILTON, hear, hear!

    BINGO! +++++++

    Posted by: TampaZeke | Nov 29, 2010 1:14:53 PM

  7. I agree, Dana. Maybe it will break down that way, maybe it won't. The Court isn't--or shouldn't be--reduced to politics. A conservative politician's reasoning doesn't have to be rational (as many right-wing politicians demonstrate daily), but a judge's reasoning should be. Each judge must rationalize his affirmation or rejection of Judge Walker's ruling, and rationality is on our side. Conservative judges aren't automatically irrational on Prop 8/marriage equality. (Aside from a few activist judges on the SC, perhaps.)

    Posted by: Ernie | Nov 29, 2010 1:44:38 PM

  8. I so wish that Dana would prove to be correct, but as a former 5th Circuit law clerk and frequent federal court litigator, I believe that there is virtually no way that Reinhardt & Smith will agree on this, except PERHAPS on standing (and that would be a miracle). Smith is Mormon, a BYU graduate, and a former Idaho GOP Chair. If he were to rule for marriage equality he would be right up there with Mandela to me. Don't bet on it.

    Posted by: Mike | Nov 29, 2010 1:58:36 PM

  9. This is going to be like McCain continually whining and searching for a new DADT Survey until it confirms his personal hate and animis towards LGBTs: He won't stopbitching until it goes HIS way. Prop H8 supporters and the Moron Church of Latter Day Shits will predictibly act that way too.

    Posted by: New Jersey Boi | Nov 29, 2010 2:08:28 PM

  10. Sigh... The panel make up is irrelevant. What is most important is WHAT WE DO. We won't see action from the Bigots in the White House and Congress until we put an end to business as usual through direct action, civil disobedience, and protest. We've proven that we are willing to put up with as much bullshit as they are willing to throw at us. The LGBT movement chooses to sit on our collective asses waiting for homophobic Democrats to "give us" our rights. OR we sit on our asses and let "equality" groups like HRC and Equality California distract us from equality by pointing at the Republicans and making the same old tired excuses for the Democrats.

    We get the rights we deserve and since queers clearly refuse to stand up and fight for our rights (with a very few notable and praiseworthy exceptions like GetEqual), we DON'T DESERVE equality. If you you believe that posting critiques of the judges who will be deciding on our rights is a way of fighting for those rights, you've had your head up the ass of the Democratic Party for way too long. I invite you to read a book, ANYTHING, about the social movements of the 1960s. No one has ever won equal rights by lobbying, by writing emails, or by making phone calls. EVER.

    In 50 years, young queer kids will watch video of today's LGBT movement and they'll ask "You mean gay teenagers were killing themselves? What did you do to stop it?" And we can proudly answer "I sent an email."

    Posted by: The Ghost of Harry Hay | Nov 29, 2010 4:27:35 PM

  11. @Mike, you're right re: Smith is Mormon, a BYU graduate, and a former Idaho GOP Chair.

    from that article:
    In 1984, while practicing law full-time in Idaho, he began teaching political science and management classes as an adjunct professor at Idaho State University in Pocatello, something he continues doing to this day. Smith served as chairman of the Idaho Republican Party in the 1990s and began his career on the bench in 1995 as a trial court judge. In 2007 he joined the appellate 9th Circuit court thanks to a nomination by President George W. Bush.

    Posted by: me | Nov 30, 2010 2:16:59 PM


    I don't k now about you, but I "deserve" equality.
    And so does my husband. in fact, we have a constitutional right to it, as you will see.

    Posted by: wimsy | Nov 30, 2010 3:19:36 PM

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