CA Justice Carlos Moreno Announces Retirement

Justice Carlos Moreno, 62,

Oh No! One of my heroes, California Supreme Court Justice Carlos Moreno, announced today that he is retiring from the California Supreme Court. Moreno, 62, was appointed to the court by Democratic Governor Gray Davis in October 2001. He is most well-known for being on the short list for President Obama's first Supreme Court justice pick to replace David Souter in 2009. Before that, Justice Moreno was in the 4-3 majority which legalized marriage equality in California in May 2008 and the sole dissenter in May 2009 when the California Supreme Court upheld Proposition 8 in a 6-1 decision under state law.

Equality California put out a statement praising Justice Moreno for his service and calling on Governor Jerry Brown to appoint an LGBT replacement:

“Justice Moreno has a long and very distinguished record of public service.  He took an unequivocal stance on the judicial branch’s moral responsibility to protect minorities. During his nine-year tenure, he has been a champion of equal protections for lesbian, gay, bisexual and transgender Californians, and he will leave behind an honorable legacy with his staunch commitment to uphold justice, fairness and equality.

“Governor Brown is now presented with a unique opportunity to make history by appointing the first openly lesbian, gay, bisexual, or transgender judge to the state’s highest court, and we urge him to consider nominating an openly LGBT judge to fill the vacancy.” 

There are only three known out state Supreme Court justices nationwide, 2 in Oregon and one in Colorado.
With Moreno's departure California's 7-member highest court will have no Latino or African-American members, but will have 3 Asian members (Chin, Cantil-Sakauye, Kennard), and 4 women (Cantil-Sakauye, Corrigan, Kennard and Werdegar).

Latina Lesbian Named To Colorado Supreme Court

Monica Marquez, 41, has been  named by Democratic governor Bill Ritter to become the first out lesbian and first Latina to be on the Colorado Supreme Court.

"It is not because Monica is a Latina or because she is gay," Ritter said, according to The Denver Post. "I chose her because of her analytical ability and her keen intellect."

Interestingly, Oregon CURRENTLY has two openly gay State Supreme Court Justices, Virgina Linder and   Rives Kustler.


Hat/tip to Nan Hunter

9th Circuit Issues Stay On Perry; Expedites Appeal

Today, the 9th Circuit Court of Appeals granted a stay in Perry v. Schwarzenegger, a.k.a. "The Prop 8 case" which means that same-sex couples will not be marrying in California any time soon.The decision overturn's Judge Vaughn Walker's denial of a stay last Thursday of his previous landmark decision issued last Thursday. The 9th Circuit also set an expedited schedule for the court, setting a trial date for the week of December 6th, 2010.

Here's the order at the special website the 9th circuit has set up for the case:

“Appellants’ motion for a stay of the district court’s order of August 4, 2010 pending appeal is GRANTED. The court sua sponte orders that this appeal be expedited pursuant to Federal Rule of Appellate Procedure 2. The provisions of Ninth Circuit Rule 31-2.2(a) (pertaining to grants of time extensions) shall not apply to this appeal. This appeal shall be calendared during the week of December 6, 2010, at The James R. Browning Courthouse in San Francisco, California.

The previously established briefing schedule is vacated. The opening brief is now due September 17, 2010. The answering brief is due October 18, 2010. The reply brief is due November 1, 2010. In addition to any issues appellants wish to raise on appeal, appellants are directed to include in their opening brief a discussion of why this appeal should not be dismissed for lack of Article III standing. See Arizonans For Official English v. Arizona, 520 U.S. 43, 66 (1997).

IT IS SO ORDERED.

There are several significant part of this one-page ruling. 1) Having a federal appellate trial less than 4 months away is incredibly fast for appellate litigation. The Prop 8 proponents have to file their brief by September 17th (1 month away) and our side a month after that and then the bad guys get to respond two weeks later and then oral arguments commence two weeks after that. There is no time frame as to how long after oral arguments the 9th Circuit will issue its ruling,, but it is signalling that it wants to dispose of the case quickly. 2) The last sentence asking for a discussion (see students, it's an essay prompt!) about why the appeal should not be dismissed for lack of standing is also a plus on our side.

GOP Kills 2 API Federal Judicial Nominations

Edward M. Chen, federal district court nominee

Wow. The GOP must really care about what people of color think about their actions. What they really do care about is the (federal) judiciary. So, it is notable that they have done their best to kill the nominations of two Asian-American men to be federal judges in the 9th Circuit.

Goodwin Liu and Edward Chen were nominated to the federal judiciary by President Obama but blocked by Republicans despite having received 12-7 endorsements from the Senate Judiciary committee.

Under a rarely invoked rule, the Senate must agree to carry over pending nominations when it goes on a 30-day recess. But Republican leaders objected to carrying over several disputed nominees, including Liu and Chen.

"The Republicans are obstructing and, in effect, trying to kill these nominations," Sen. Dianne Feinstein (D-Calif.) said Friday. "It is tragic because these are very worthy nominees who deserve to have their nominations debated and put to a vote."

The San Francisco Chronicle explains why the Republicans are blocking the confirmation of Liu and Chen to the bench.

Liu, a former Rhodes scholar and Supreme Court clerk, has been labeled an extreme liberal by Republican opponents, who cite his support of same-sex marriage and affirmative action.

Chen's opponents point to his background as an American Civil Liberties Union lawyer in San Francisco from 1985 until 2001, when federal judges appointed him as a magistrate.

Under procedures requiring unanimous consent, Republicans have regularly objected to holding Senate votes on Obama's judicial candidates.

They agreed to allow a handful of confirmation votes Thursday, the last day before the recess. But they blocked votes on more than 40 other candidates, and returned five who have encountered opposition, including Liu and Chen, to the White House.

If renominated, Liu and Chen will return to the Judiciary Committee for new votes after Congress returns Sept. 13. To force the Senate to consider their confirmation over Republican objections, Senate Democrats would have to muster 60 votes, which would require support from at least one Republican.

As I noted last month, whether Goodwin Liu joins the 9th Circuit Court of Appeals is a key test to see whether President Obama will actually go to bat for things that progressives believe in.

The 9th Circuit, of course is the appellate court which will be hearing the appeal of Perry v. Schwarzenegger, the Proposition 8 case.

Connecting Federal Rulings on Prop 8 and SB 1070

My friend Sandip Roy has a great piece up on Salon magazine connecting the two recent federal rulings on Arizona's SB 1070 and California's Proposition 8. Called "Proposition 8 and S.B. 1070: Sisters under the skin?", Sandip writes from the perspective of a queer immigrant to point out that the two apparently disparate rulings validated two parts of his identity but stemmed from the same law: the 14th amendment to the U.S. constitution.

On July 28 Susan Bolton issued an injunction that defanged the anti-immigrant S.B. 1070 in Arizona. On Aug. 4, Vaughn Walker found California’s Proposition 8 that outlawed same-sex marriage unconstitutional. For this they will both be tarred as “judicial activists.” Judge Bolton has received death threats. Judge Walker is being denounced.

I have no idea if the two judges know each other, but within one week, they had suddenly brought together two parts of who I am. As a gay immigrant, I am used to juggling identities, never sure which one is acceptable in which setting, which one I should check at the door.

[...]

The fight over Proposition 8 in California rested on the 14th Amendment of the U.S. constitution. What Judge Walker found was Proposition 8 violated the due process and equal protection clause of the 14th Amendment to the Constitution.

The fight over illegal immigration is about federal jurisdiction and states' rights but it also boils down to the 14th Amendment. That’s the grand prize, the Holy Grail that the Russell Pearces of Arizona are really aiming to overturn. Pearce wrote in an e-mail obtained by CBS 5 News: "I also intend to push for an Arizona bill that would refuse to accept or issue a birth certificate that recognizes citizenship to those born to illegal aliens, unless one parent is a citizen."

[...]

Yes, both victories are just rest stops in much bigger fights. Both fights are probably headed for an uncertain future in the U.S. Supreme Court. But until today I didn’t realize that in some ways it’s the same fight. Supervisor David Campos told the cheering crowd that this was about "justice for all" -- not just "gays and lesbians, but immigrants and minorities and transgender."

That can sound like San Francisco big umbrella talk. But these cases touch each other in ways I didn’t realize. My numerologist friend said, "Of course they do, the digits in 1070 add up to, you guessed it, 8."

[...]

If the twin judgments show anything it's this. Though the crowd that celebrated Bolton’s decision in Phoenix might look different from the crowd celebrating Walker’s ruling, these are sisters under the skin. As [Equal Justice Society's Eva] Paterson reminded the crowd, "It’s the same law that gave equality and protection to immigrants in Arizona."

A great example of intersectional analysis at work..

Federal Court Hears Challenge To DOMA

Today, federal judge Joseph Tauro is hearing oral arguments in Gill v. Office of Personnel Management, a constitutional challenge to Section 3 of the 1996 Defense of Marriage Act, which purports to disallow any federal benefits to any marriage which does not consist of one man and woman.

Cue the press release:

Federal Court Hears Arguments in DOMA Challenge

This morning in Boston, six years after the first same-sex couples in the country started marrying in Massachusetts, eight married same-sex couples and three widowers went to Federal District Court to hear arguments in their challenge to Section 3 of the federal Defense of Marriage Act (DOMA). DOMA defines marriage as only between a man and a woman for all purposes under federal law.

Represented by Gay & Lesbian Advocates & Defenders (GLAD), the plaintiffs in Gill et al. v. Office of Personnel Management, all married in Massachusetts, have each been harmed by DOMA treating them as unmarried.

“This is a classic equal protection issue. The Constitution applies to gay and lesbian citizens, and married ones, too,” Mary L. Bonauto, GLAD’s Civil Rights Project Director, told the Court. “What governmental purpose does the US have as an employer in treating some of its married employees, retirees and surviving annuitants differently from other married persons, such that Nancy Gill pays for a self and family plan like some of her married colleagues, but the plan doesn’t cover her own spouse?”

Bonauto presented a three-pronged legal argument: By singling out only the marriages of same-sex couples, DOMA violates the equal protection clause of the United States Constitution; DOMA represents an unprecedented intrusion of the federal government into marriage law, which for 230 years has been legislated by states; and by denying federal protections to families, DOMA burdens the marriages of same-sex couples and their right to maintain family integrity.

U.S. District Court Judge, Joseph L. Tauro, vigorously questioned plaintiffs and defendants in a courtroom packed with supporters and media. Judge Tauro heard GLAD’s motion for summary judgment as well as the federal government’s motion to dismiss. The hearing addressed the core issue of whether DOMA Section 3 is constitutional six years after the first same-sex couples in the country started marrying in Massachusetts, the result of GLAD’s groundbreaking marriage case, Goodridge v. Department of Public Health.

As a result of DOMA, passed by Congress in 1996, plaintiffs in GLAD’s lawsuit have been denied survivor benefits on a deceased spouse’s pension; denied health insurance coverage for a spouse on a federal family plan; denied Social Security spousal, death, and widower benefits; and denied the ability to file federal income taxes jointly as married.

“DOMA means that our country doesn’t treat our family or our marriage as equal to our friends’ and coworkers’ families,” said plaintiff Nancy Gill after the hearing. A U.S. Postal Service employee, Gill, with her spouse Marcelle Letourneau, is raising two children in Brockton. “Under DOMA, we are not married, and my federal employer must deny Marcelle my health benefits. Under DOMA Marcelle won’t receive the federal health benefit given to surviving spouses. She’ll also be denied my pension benefits.”

Gill was filed on March 3, 2009, and has been called the case with the greatest potential for national impact by the National Law Journal. The Gill legal team is led by Bonauto and GLAD Legal Director Gary Buseck, and staff attorneys Nima Eshghi, Janson Wu, and Samuel Bickett. Co-operating counsel on the case include Foley Hoag LLP (Boston), Sullivan & Worcester LLP (Boston), Jenner & Block LLP (Washington, DC) and Kator, Parks & Weiser, PLLC (Washington, DC).

Gay & Lesbian Advocates & Defenders is New England’s leading legal organization dedicated to ending discrimination based on sexual orientation, HIV status, and gender identity and expression.

Information about the case, the plaintiffs, and the attorneys representing them can be found at www.glad.org/doma.

This lawsuit has a very good chance of succeeding, even with a court with Scalia on it.

Obama's List For SCOTUS Has 10 Names On It

The New York Times reports that although the top 3 favorites have not changed (Solicitor General Elena Kagan, 5th Circuit Court of Appeals Judge Diane Wood and D.C. Circuit Court of Appeals Judge Merrick Garland) President Obama is interviewing up to 10 candidates for the upcoming vacancy on the Supreme Court due to Justice John Paul Stevens already-announced retirement.

The other seven on the (not-so short) list are:

Sidney R. Thomas, 9th Circuit Court of Appeals

Ann Claire Williams, 7th Circuit Court of Appeals

Gov. Jennifer M. Granholm of Michigan;

former Chief Justice Leah Ward Sears of the Georgia Supreme Court;

Martha Minow, dean of Harvard Law School;

Justice Carlos R. Moreno of the California Supreme Court;

Homeland Security Secretary Janet Napolitano.

I'm curious as to why liberal judicial rock stars Pamela Karlan and Kathleen Sullivan are not being publicly considered. Could it be because they are openly lesbian? It is heartening to see that Justice Carlos Moreno is still under consideration, however.

Obama Nominates API LGBT Ally For 9th Circuit

Goodwin Liu

This should be the biggest judicial confirmation battle this year (barring any Supreme Court retirements, which are likely). President Barack Obama has nominated UC Berkeley Law School Professor Goodwin Liu for a vacancy on the 9th Circuit Court of Appeals.

Liu has impeccable intellectual and legal credentials. From the official White House announcement:

Goodwin Hon Liu is an Associate Dean and Professor of Law at the University of California, Berkeley School of Law. An acclaimed scholar, teacher, and lawyer, with experience in both the private and public sectors, Liu is a nationally-recognized expert on constitutional law and education law and policy. In 2009, he received Berkeley's most prestigious teaching award.

Prior to joining the Berkeley faculty in 2003, Liu was an associate at O'Melveny & Myers in Washington, D.C. He clerked for Justice Ruth Bader Ginsburg in the October 2000 Term, and for Judge David S. Tatel on the Court of Appeals for the D.C. Circuit from 1998-1999. Between his clerkships, Liu served as a Special Assistant to the Deputy Secretary at the U.S. Department of Education. He has also worked for the Corporation for National Service, where he helped launch the AmeriCorps program.

Liu was born in Augusta, Georgia, to parents who emigrated from Taiwan, and he grew up in Sacramento where he attended public schools. Liu earned a B.S. from Stanford University in 1991, an M.A from Oxford in 2002 (where he studied as a Rhodes Scholar), and a J.D. from Yale Law School in 1998.

The Los Angeles Times notes that if Liu is confirmed, he will be the only Asian American serving on an appellate court in the country.

MadProfessah is familiar with Godwin Liu because we both appeared at a Joint California Assembly-Senate Judiciary Committee Hearing in 2008 testifying that he thought Proposition 8 was unconstitutional and has written published editorials to that effect also.

Goodwin Liu is also known for testifying against Samuel Alito's nomination to the Supreme Court and will be an excellent progressive judge and Asian American LGBT ally on the 9th Circuit!

SCOTUS Oral Argument in Doe v. Reed: April 28

The Supreme Court has set the oral argument date of April 28th in the closely watched case of Doe v. Reed, which is the case in which proponents of the anti-gay ballot measure Referendum 71 (which, if rejected by voters would have prevented Washington's comprehensive domestic partnership statute from going into effect) won an emergency injunction from the US Supreme Court prior to the November 2009 election barring the release of the information of those who had signed to get the question on the ballot. Referendum 71 was approved so that the anti-gay side lost their bid to use the ballot box to write their homophobic views into state law, but the question of whether Washington State's public disclosure law trumps the right of heterosexual supremacists who sign petitions to eliminate the rights of others is still a matter of judicial dispute.

Specifically, the questions to be considered on April 28th will be:

1. Whether the First Amendment right to privacy in political speech, association, and belief requires strict scrutiny when a state compels public release of identifying information about petition signers.

2. Whether compelled public disclosure of identifying information about petition signers is narrowly tailored to a compelling interest, and whether Petitioners met all the elements required for a preliminary injunction.

I believe that both the answers to these questions could be Yes (though, actually there are two questions in Question #2, the second of which is moot at this point) and Petitioners should lose their case. Respondent (the State of Washington being represented by Secretary of State Sam Reed) should rely heavily on the excellent 9th Circuit Court appellate opinion in this case.

Even conservative UCLA law professor Eugene Volokh believes that "you don't have a constitutional right to essentially engage in a legally significant action anonymously" and election law expert Rick Hasen is similarly dubious about petitioner's chances of prevailing. This is on appeal from the 9tyh Circuit, the Circuit the conservative majority loves to slap down.

Also, even though the issues are different from the Proposition 8 injunction case, it is clear which side if the "pro-gay" side (Respondent) and which is the "anti-gay" side (Petitioner) so it should be very interesting to see the final ruling in this case by the end of June.

Openly Gay Man Nominated For Federal Judgeship

United States Senator of New York Chuck Schumer (D-NY) is making news today with the announcement that he is recommending the first openly gay man for a federal judgeship: Daniel Alter.

From the press release from the Senator's office:

Today, U.S. Senator Charles E. Schumer announced that he is recommending Daniel Alter to President Obama to serve as a judge in the Southern District federal court. Mr. Alter is a history-making pick, as he is the first openly gay male nominated for the federal court in American history. Schumer laid out several reasons Alter would make an excellent fit for the job. Schumer said that Alter’s stellar legal background, close ties to New York, even-handedness, temperament and demonstrated leadership skills would make him an excellent choice for the Southern District Court. Schumer also said that he is highly capable and very qualified for the position.

“Daniel Alter couldn’t be a more perfect choice. He is a brilliant attorney who possesses the knowledge, balanced views and temperament required of a federal judge,” Schumer said. “His outstanding leadership skills, his commitment to justice, and his extensive experience make him an exceptional choice for a position on the federal bench. I’m proud to nominate Daniel Alter. Period. But I am equally proud to nominate him because he is a history-maker who will be the first openly gay male judge in American history.”

Alter is a graduate of Columbia College and Yale Law School. As a young lawyer, Mr. Alter clerked for the Hon. John M. Walker and the Hon. Guido Calabresi, who both served on the United States Court of Appeals for the Second Circuit.

The sexual orientation of federal judges has been in the news recently with the San Francisco Chronicle reporting over the weekend that U.S. District Court judge Vaughn Walker, who just happens to be conducting the most important gay rights case (on the federal constitutionality of California's Proposition 8) of the decade (century?) is openly gay.

There are currently 875 federal judges under Article III of the United States Constitution and exactly two are known to be openly gay or lesbian: Vaughn Walker and Deborah Batts (who is also Black).

Human Rights Campaign Joe Solmonese released a statement:

“Daniel Alter is eminently qualified for a position on the federal bench. America is taking a step forward towards equality by evaluating an individual based on his accomplishments and without regard to his sexual orientation. We commend Senator Schumer for his historic recommendation, and look forward to the President’s nomination.”

Federal judgeships are lifetime appointments and have been a flashpoint with Republicans in the past. It should be interesting to see how long it takes the Alter nomination to get through the Senate, and how long it takes the Obama administration to formally initiate the process.

I'm also curious if this will encourage any other federal judges to come out. After all, 2 out of 875 federal judges being gay or lesbian is a statistically unlikely number.

SF CHRONICLE Outs Prop 8 Federal Judge

The San Francisco Chronicle has published a story revealing to the general public an open secret that many of us have already known: Vaughn Walker, the federal judge conducting the federal trial into the unconstitutionality of Proposition 8 known as Perry v. Schwarznegger, is gay:

The biggest open secret in the landmark trial over same-sex marriage being heard in San Francisco is that the federal judge who will decide the case, Chief U.S. District Judge Vaughn Walker, is himself gay.

Many gay politicians in San Francisco and lawyers who have had dealings with Walker say the 65-year-old jurist, appointed to the bench by President George H.W. Bush in 1989, has never taken pains to disguise - or advertise - his orientation.

They also don't believe it will influence how he rules on the case he's now hearing - whether Proposition 8, the 2008 ballot measure approved by state voters to ban same-sex marriage, unconstitutionally discriminates against gays and lesbians.

[...]

Many San Francisco gays still hold Walker in contempt for a case he took when he was a private attorney, when he represented the U.S. Olympic Committee in a successful bid to keep San Francisco's Gay Olympics from infringing on its name.

"Life is full of irony," the judge replied when we reminded him about that episode.

And did he have any concerns about being characterized as gay?

"No comment."

Shortly after our conversation, we heard from a federal judge who counts himself as a friend and confidant of Walker's. He said he had spoken with Walker and was concerned that "people will come to the conclusion that (Walker) wants to conceal his sexuality."

"He has a private life and he doesn't conceal it, but doesn't think it is relevant to his decisions in any case, and he doesn't bring it to bear in any decisions," said the judge, who asked not to be identified because of the sensitive nature of the Prop. 8 trial.

"Is it newsworthy?" he said of Walker's orientation, and laughed. "Yes."

He said it was hard to ignore the irony that "in the beginning, when (Walker) sought to be a judge, a major obstacle he had to overcome was the perception that he was anti-gay."

In short, the friend said, Walker's background is relevant in the same way people would want to know that a judge hearing a discrimination case involving Latinos was Latino or a Jewish judge was ruling in a case involving the Anti-Defamation League.

Walker, by the way, didn't seek out the Prop. 8 case - it was assigned to him at random.

I am actually glad that this story is being published. It is newsworthy that the judge is gay, and if reporters can come up with enough sources to be confident of printing that fact, they should write a story about it. Being gay is not something to be ashamed about.

Now, being appointed to the federal bench by a Republican President, that is not something I would want very many people to know about!