Don't Have A Leg To Stand On

This afternoon Judge Vaughn Walker took the notion of issuing a stay on California's gay marriages out back and beat the ever loving crap out of, going so far to say that the folks behind Prop 8 had no legal standing to even request a stay, an amazing ruling in and of itself.

A federal judge Thursday refused to permanently stay his ruling overturning Proposition 8 but extended a temporary hold to give supporters time to appeal the historic ruling.

U.S. District Judge Vaughn R. Walker, who overturned the measure on Aug. 4, agreed to give its sponsors until Aug. 18 to appeal his ruling to the U.S. 9th Circuit Court of Appeals. No new marriages can take place until then.

Gov. Arnold Schwarzenegger and Atty. Gen. Jerry Brown, the state's highest officials and named defendants, have told Walker that his ruling declaring Proposition 8 unconstitutional should be enforced immediately.

In his ruling Thursday, Walker said the sponsors of the measure do not have legal standing to appeal his order because they were not directly affected by it.

"As it appears at least doubtful that proponents will be able to proceed with their appeal without a state defendant, it remains unclear whether the Court of Appeals will be able to reach the merits of proponents' appeal," Walker wrote.

In other words, since the Governor (Arnold Schwarzenegger) and Attorney General (Jerry Brown) don't plan to appeal themselves in their capacity as officers of the State of California, Judge Walker is basically saying that the Prop 8 folks cannot represent the state because the case is, after all, Perry vs. Schwarzenegger, not Perry vs. The People Who Were Behind Prop 8.

That's astounding.  Really.  They have until 5 PM PDT Wednesday afternoon to file an appeal, or the law is overturned and California can once again perform gay marriages, which is what the Governator and Moonbeam want to do in the first place.

As bmaz over at Emptywheel notes, this will force a 9th Circuit decision very, very quickly.

So now the question is which three judges will be assigned to the panel that will consider and rule on the appeal, because the makeup of the appellate panel is absolutely critical to the process and potential outcome. There has not yet been a formal panel assigned to the appeal, but just as with the court protocol I used to predict Walker’s decision ahead of time, there is a tradition and protocol generally followed in the 9th Circuit that may give us an idea of the panel that will be deciding this seminal case.

In the 9th Circuit, when a case goes up on appeal, and it has been there before to a given panel on any issue, that panel has the option of taking the full appeal when it is filed. Well, the Perry case has indeed already been up to the 9th previously on an interlocutory appeal of a discovery issue during the trial process, and that appeal was decided by a panel consisting of Judges Wardlaw, Fisher and Berzon. I think there is a very decent chance the standard 9th protocol is followed here and the full appeal is assigned to the previous panel of Wardlaw, Fisher and Berzon, which makes sense in terms of judicial economy since they are already up to speed on the parties and the case facts and posture.

So who are these judges, and what is the book on them? Well, that is where the fun comes in. They are all three Clinton appointees, and two of them, Marsha Berzon and Ray Fisher, clerked for Justice Brennan. Solid liberal credentials for sure, and Kim Wardlaw may actually be even more enlightened. If the appeal gets assigned to this panel, it would be in excellent hands and I would like very much the chances for upholding Judge Walker’s decision in favor of marriage equality for all.

And such a decision would ensure passage to the Supreme Court.  Will the 9th Circuit issue a stay?  Odds are close to 100% would be my guess.  We'll see.