Yesterday the 9th Circuit U.S. Court of Appeals announced the three judges who will be presiding over the Prop 8 appeal, which is set to begin next week. They are:
Judge Stephen Reinhardt: one of the 9th Circuit's most senior members, is a 1980 appointee of former President Jimmy Carter, and has been dubbed the "lion of the left" for a career of liberal rulings on issues ranging from civil rights to the death penalty. The 79-year-old judge is based in Pasadena.
Judge Michael Daly Hawkins: 65, is a former Arizona U.S. attorney and 1994 appointee of former President Bill Clinton. A self-described moderate, he has tended to side with the 9th Circuit's liberal wing on some close cases in recent years, including writing a ruling last year that would have allowed a lawsuit to proceed against a San Jose subsidiary of Boeing over the CIA's so-called torture flights. Hawkins' ruling was overturned earlier this year by a sharply divided 11-judge panel.
N. Randy Smith: 61, was a longtime Idaho state court judge before Bush tapped him for the federal bench. He is a former chairman of Idaho's Republican Party. With about two years on the court, Smith has yet to establish much of a track record, but has been a conservative vote in several close cases. That includes joining the majority opinion in a 6-5 ruling last year that sided with police powers in a case out of San Jose that found police could not be sued for civil rights violations for arresting a suspect after a lengthy armed standoff at a local apartment complex.
According to the San Jose Mercury News, legal experts say Reinhardt and Hawkins may be receptive to the argument that the state's gay marriage ban violates the federal equal protection rights of same-sex couples. But they also caution against being overly reliant on ideology to forecast the case because the 9th Circuit may not even deal with that central question.
There is lingering doubt that Proposition 8 backers have the legal authority to defend the law without the state involved, a concept known as legal standing. The 9th Circuit is devoting half of the argument session to that topic.
As a result, it is less clear to 9th Circuit experts how a judge such as Reinhardt or Hawkins might address that issue. In fact, the leading U.S. Supreme Court precedent on the subject involved Reinhardt, who wrote an opinion in the mid-1990s that struck down Arizona's "English-only" law. The Supreme Court later wiped that ruling off the books by finding that the backers of the law did not have legal standing to defend it in court; the law was later declared unconstitutional, but the skirmish is considered important to the standing issue in the Proposition 8 appeal.
"I don't know that he'd think it would be best for the Supreme Court to hear the case on the merits" right now, said Vikram Amar, a UC Davis law professor. "On the merits, there is not much question how he would come out."
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