Judges who will hear Prop 8 appeal range across the political spectrum

by on November 29, 2010  •  In Marriage

With oral argument exactly one week away, the Ninth Circuit announced which three judges will comprise the panel hearing Perry v. Schwarzenegger. From the SF Chronicle:

A staunch liberal, a conservative Republican from Idaho and a Clinton centrist were announced today as the members of the federal court panel that will hear next week's appeal of a ruling striking down California's ban on same-sex marriage.

Judges Stephen Reinhardt, N. Randy Smith and Michael Hawkins of the Ninth U.S. Circuit Court of Appeals will hear two hours of arguments Dec. 6 in San Francisco over Proposition 8, the November 2008 initiative that defined marriage as the union of a man and a woman.

The panel was chosen by random selection several months ago but was not disclosed until a week before the hearing, a court policy designed to limit the parties' ability to seek grounds to disqualify the judges.

Reinhardt, 79, a former Democratic National Committee member appointed by President Jimmy Carter in 1980, is widely viewed as the most liberal judge on the appeals court and one of the most liberal in the nation. He was one of the judges on the court panel that declared the phrase "under God" in the Pledge of Allegiance to be a violation of the constitutional separation of church and state. The U.S. Supreme Court later threw out the case on a technicality.

Reinhardt also wrote an opinion declaring that people have a constitutional right to commit suicide with a doctor's assistance. In addition, he is a member of the three-judge federal panel that found health care in California's prisons was so bad that it violated inmates' constitutional rights.

Smith, 61, was appointed by President George W. Bush in 2007. He is a former trial judge and ex-chairman of the Idaho Republican Party. One of his opinions this March dissented from a ruling that allowed parents of a child with learning disabilities to sue a school district for ignoring the problems and failing to arrange educational help. Smith said the law authorizes parents to sue only over a school's wrongful actions, not its negligence or failure to act.

Hawkins, 65, a former federal prosecutor in Arizona, was appointed by President Bill Clinton in 1994. He is generally considered a moderate Democrat, but some of his prominent opinions have sided with liberals. He dissented from a 1999 ruling that upheld a local ordinance in Alaska allowing religious landlords to refuse to rent to unmarried couples. Last year, Hawkins wrote a ruling that would have allowed foreign terrorist suspects to sue for their alleged kidnapping and torture in a CIA-run program, but an 11-judge court panel ordered the suit dismissed in September on state-secrets grounds.

Before deciding whether to uphold Prop. 8, the appeals court will consider whether the initiative's sponsors have the right to argue for the measure on the state's behalf. Both Gov. Arnold Schwarzenegger and Attorney General Brown have declined to appeal the ruling.

The losing side in the appeals court ruling could ask the full court for a rehearing before a larger panel or appeal directly to the U.S. Supreme Court.


4 Responses to Judges who will hear Prop 8 appeal range across the political spectrum

  1. daftpunkydavid November 30, 2010 at 12:13 AM

    i was eager to await your point of view on this… can you please briefly explain under what circumstances this can be sent yo the full 9th circuit as opposed to just these 3 judges? thanks.

  2. Jay November 30, 2010 at 8:51 AM

    If I recall correctly, Smith is a staunch Mormon.

  3. Nan Hunter November 30, 2010 at 9:33 AM

    After a three-judge Court of Appeals panel renders its decision (which, btw, could be months into the future), the losing side has a choice of what to do next. They can either file a cert petition to the Supreme Court or, if they think that the entire circuit, rather than this randomly assigned panel, would be more inclined to rule for them, they can ask for rehearing en banc. If that motion is granted, the panel decision is vacated, and the parties argue the case again, this time to all the judges in that circuit.

    But – the 9th Circuit is unique in one respect. Because there are so many judges in this circuit (the number in each circuit is different), there are actually two en banc steps instead of just one. If rehearing en banc is granted in the 9th Circuit, the argument will be before 11 judges randomly assigned. (The full circuit has something like 33 judges.) There is an obscure rule, which I don’t recall off the top of my head, that allows for the option of seeking en banc before all of them, after the first en banc is completed. That’s quite rare, though.

    In practical terms, an en banc hearing would be before 11 of the 9th Circuit judges. Then the losing side after that step would have the option of seeking review in the Supreme Court.

    In normal cases, the side that loses before the 3-judge panel has an incentive to seek an en banc rehearing because the Supreme Court grants review in such a tiny number of cases.

  4. daftpunkydavid November 30, 2010 at 9:49 AM

    thank you! so this is sooo not over; in today’s “constant news” society it’s a bit frustrating, but i guess we have to wait for justice to take its course.

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