9th US Circuit Sends Prop 8 Question To CA Sup Ct

Perry v. Schwarzenegger (Prop 8 Case): ORDER CERTIFYING A QUESTION TO THE SUPREME COURT OF CALIFORNIA

Republicans Kill Liu Nomination; Approve 19 Others

Goodwin Liu

What's that smell? I think it's the stench of "pragmatism" and horse trading. Apparently a deal has been reached between Senate Majority Leader Harry Reid and Senate Minority Leader Mitch McConnell to kill the nominations of four "controversial" federal judicial candidates in return for getting several other of President Obama's judicial nominations approved. The four judges that were anathema to Republicans just happen to be Goodwin Liu, Edward Chen, Louis B. Butler, Jr. and John J. McConnell, Jr.

MadProfessah has been following the odyssey of Liu's nomination because I met him once at joint State Assembly and Senate Judiciary Committee hearing on Proposition 8, where the Dean of UC Berkeley's Boalt School of Law. Liu is an unapologetic API LGBT ally and progressive jurist who some consider a likely candidate for a Supreme Court nomination in Obama's second term.

Officials familiar with the deal said Democrats agreed not to seek votes on the nominations of Goodwin Liu, associate dean at UC Berkeley's Boalt Hall School of Law, and three others, while Republicans agreed to confirm at least 19 of President Barack Obama's noncontroversial nominees.

If confirmed, Liu, 40, of Berkeley, would be only the second Asian-American serving on a federal appeals court and the only active Asian-American on the 9th U.S. Circuit Court of Appeals, and is seen by some as a potential future U.S. Supreme Court pick. However, his nomination in February was almost immediately met by Republican opposition.

"Professor Liu is an outstanding nominee and it is most unfortunate that my Republican colleagues are blocking an up-or-down vote on his nomination," U.S. Sen. Barbara Boxer, D-Calif., said Tuesday. "I will keep fighting until he is confirmed."

The approval of judges means that Democratic-nominated judges are now a majority on the 2nd Circuit Court of Appeals and increased their margin on the 4th Circuit to 9-5. There are 11 federal circuit courts of appeals.

WATCH: The Prop 8 Oral Arguments Before 9th Circuit

Part 1:




Part 2:

These Three Men Will Decide Fate Of Proposition 8

Hawkins	Smith	Reinhardt

The 3-member panel for the 9th Circuit Court of Appeals who will hear oral arguments on Monday December 6th in the federal Proposition 8 case, Perry v. Schwarzenegger, has been announced. It consists of the most liberal member of the gigantic 26-member 9th Circuit, Hon. Stephen Reinhardt (appointed by Carter in 1980), a moderate jurist named Hon. Michael Daly Hawkins (appointed by Clinton in 1994) and a right-wing ideologue, N. Randy Smith (appointed by George W. Bush in 2007).

Most commenters think that the make-up of the panel indicates a likely 2-1 decision in favor of the good guys (supporters of marriage equality), which will probably get appealed to an 11-member panel of the 9th Circuit called an en banc panel. From there, it's direct to the Supreme Court of the United States, the highest court in the land.

Prop 8 Federal Appeal Will Be Televised On Dec. 6!

On Monday December 6th at 10am, A 3-judge panel of the 9th U.S. Circuit Court of Appeals will hear the case of Perry v. Schwarzenegger, also known as the federal Proposition 8 lawsuit. On August 4th, openly gay federal District Court judge Vaughn Walker ruled that Proposition 8 violated the United States Constitution.

These facts have been known for awhile. The new information is that apparently the oral arguments in the Perry appeal will now be televised by C-SPAN and local channel KGO. This is a big deal, because the lower court was intended to be broadcast as well but the heterosexual supremacists defending Proposition 8 objected and appealed all the way to the United States Supreme Court who overruled Judge Walker and banned the broadcasting of the oral arguments just days before the trial was scheduled to begin this past January.

Here are the details of the hearing on Monday, which will be in two 2-hour segments. The first session will be on whether the Proposition 8 propnents have "standing" to actually continue defending the statue, since the official parties to the lawsuit (the Governor and Attorney General) have refused to defend the voter-passed initiative in court. The second hour will be about the constitutionality of Proposition 8 itself.

Filed clerk order (Deputy Clerk:KKW): The Court orders that oral argument in these appeals be conducted in the following manner: The argument shall be divided into two hour-long sessions, with a brief recess in between. In the first hour, the parties shall address each appellant’s standing and any other procedural matters that may properly be raised. In the second hour, the parties shall address the constitutionality of Proposition 8.

During the first hour, the Hollingsworth defendants-intervenors-appellants (“Proponents”) shall first have 15 minutes, and the Imperial County movants-appellants shall next have 15 minutes in which to present their opening arguments regarding standing and other procedural issues. The Perry plaintiffs-appellees shall then have 30 minutes in which to respond. Any time reserved by either appellant may be used for rebuttal, but only one rebuttal argument may be made and that by either appellant.

During the second hour, the Proponents shall first have 30 minutes to present their opening argument on the merits of the constitutional question. The Perry plaintiffs-appellees shall then have 15 minutes, and the plaintiff-intervenor-appellee City and County of San Francisco shall have the next 15 minutes, in which to respond. Any time reserved by the Proponents may be used for rebuttal.

No later than November 24, 2010, the parties shall advise the Court of any objection they have to the allocation of time within each hour or of any reallocation of time within each hour that they wish to propose, by electronically filing letters with the Clerk of the Court. If any party wishes to give its full allotted time within either hour to an amicus curiae, it may request that the Court reallocate that time accordingly. Otherwise, no motions for leave to participate in oral argument by amici curiae will be entertained.. [7545517]

The names of the judges who will hear the appeal have not been released yet. Whoever loses at this level will appeal to the United States Supreme Court, who may or may not accept the case.

9th U.S. Circuit Court of Appeals Puts DADT Back Into Effect

A 3-judge panel of the 9th U.S. Circuit Court of Appeals ruled 2-1 today to make a temporary stay permanent while the United States is appealing its loss in federal court in Log Cabin Republicans v. United States in which a federal U.S. District court judge struck down the "Don't Ask, Don't Tell" policy and enjoined the government from enforcing the policy.

Read the text of today's ruling below:
DADT Stay Order 11.01.2010

This means that the military's ban on open lesbian and gays serving in the military will continue during the expected lengthy appellate process. The government's brief in that appeal is not due until January 24, 2011.

However, per President Obama's promise that DADT will end this year, there is still a chance that legislation to repeal the policy will be passed by Congress in a lame duck session after tomorrow's election but before the newly elected members are sworn in for the 112th Congress on January 3, 2011.

DADT Update: 9th Circuit Issues Stay Until 10/25

Chris Geidner of Metro Weekly is reporting that the 9th Circuit has issued a stay of Judge Phillips' injunction in Log Cabin Republicans v. United States, which means that "Don't Ask, Don't Tell" is back in effect.

To wit:

After DADT had been halted from enforcement for nearly 200 hours, the Ninth Circuit order legally makes DADT enforceable again for the time being.

In a brief order, Judges O'Scannlain, Trott and W. Fletcher wrote:

This court has received appellant’s emergency motion to stay the district court’s October 12, 2010 order pending appeal.  The order is stayed temporarily in order to provide this court with an opportunity to consider fully the issues presented.

Appellee may file an opposition to the motion for a stay pending appeal by October 25, 2010.  To expedite consideration of the motion, no reply shall be filed.

The judges' order means that a temporary stay of the trial court injunction of DADT has been granted until the Ninth Circuit can decide -- sometime after Oct. 25 -- whether to issue a stay pending the appeal of the case to the Ninth Circuit.

[...]

If a stay is granted pending the appeal, however, DADT would likely go back into effect in the interim, as the appeal is not even scheduled to complete the briefing process until the second week of March 2011.