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

Obama Has Lowest Judicial Confirmation Rate In 30 Years

When the 111th Congress ended with a bang by approving DADT repeal, the START treaty and the Obama-Republican tax-cut deal, the Senate's shameful inaction on confirming federal judges may have been overlooked by some, but not by yours truly.

Think Progress notes that roughly one-ninth of all Article III judgeships are now vacant. In fact, Obama has the lowest rate of judicial confirmation (60 judges) of any of the last 6 presidential administrations after the conclusion of their first Congress.

It should especially be noted that Republican obstructionism is disproportionately preventing judicial nominees who happen to not be white or male from joining the federal judiciary. I'm sure that's just a coincidence. NOT!

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.

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.

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.

White House Rejects Openly Gay Federal Judge Nominee

Daniel Alter, who was set to become the first openly gay man nominated to a federal judgeship by Senator Charles Schumer (D-New York) has had his potential nomination quashed by the Obama White House.

The Washington Blade has the scoop:

The White House has rejected the recommended nomination of a New York attorney who would have become the first openly gay man to sit on the federal bench, because of comments he reportedly made about the Pledge of Allegiance and Christmas that were deemed anti-Christian.

In February, U.S. Sen. Chuck Schumer (D-N.Y.) recommended the nomination of Daniel Alter to serve as a judge for the U.S. District Court for the Southern District of New York. Presidents traditionally follow the guidance of senators from the state where there’s a vacancy for judicial nominations.

But informed sources told the Washington Blade that the White House rejected Alter’s nomination because of remarks he reportedly made regarding a case challenging inclusion of the phrase “under God” in the Pledge of Allegiance. In addition, the White House reportedly objected to remarks that Alter made suggesting that merchants not wish shoppers “Merry Christmas” during the holidays.

Interestingly, in a little noted move on September 23rd, Sen. Schumer has also nominated another openly gay man, J. Paul Oetken, to become a federal judge in the same district that Alter was intended to be nominated for, the U.S. District for the Southern District of New York.

We shall see if the Obama Administration accepts the nomination of Oetken, who hopefully has been vetted even more completely for nothing that conservative Republicans can object to.