Monday, June 02, 2014
I guess Gov. C.L. "Butch" Otter (R-Idaho) apparently really wants to hear what Alex Kozinski thinks about gay marriage. He filed a motion in Iddho's appeal of the recent ruling in Latta v Otter striking down its marriage law asking for an en banc panel of the 9th U.S. Circuit Court of Appeals hear the case instead of the customary 3-judge panel. The only reason I can think of is that he wants to enhance the conservativeness of the panel that hears his appeal by insuring that the very conservative Kozinski be on the panel of judges that decide this case.
The 9th Circuit is considered one of the most liberal federal appellate courts, and for the first time in a looong time it has its full 29-judge complement. This means that it is probably more likely than not that a 3-judge panel will include more liberals than conservatives; however an 11-judge en banc panel must include the chief judge and 10 others. In fact, it must be true that the probability of a conservative panel goes up with an en banc than a random 3-judge panel because Otter is assured that Kozinski (a conservative) must be on the panel. I guess someone on the judge's staff knows their probability and statistics!
There are currently 20 Democratic-appointed judges and only 9 Republican-appointed judges on the 9th Circuit.
In addition to an en banc panel, Gov. Otter also wants the appellate court to reconsider the question of whether sexual orientation should receive heightened scrutiny or not. Currently, sexual orientation does receive heightened scrutiny, which is one important reason why bans on marriage equality in the 9th circuit are likely to be struck down. However, even using a rational basis standard, judges reviewing the Oregon and Idaho laws have ruled them unconstitutional.
Federal judges are notoriously loath to allow litigants to skip steps so it seems unlikely the 9th circuit will accede to Otter's request.