Big doings at the Ninth Circuit

The United States Court of Appeals for the Ninth Circuit heard oral argument yesterday in Arizona’s appeal from a decision blocking enforcement of its immigration enforcement law. Two of the three judges on the panel that heard the appeal – John Noonan and Carlos Bea – are considered conservative jurists.
According to the Washington Post, Judge Noonan was all over the government’s lawyer, deputy solicitor general Edwin S. Kneedler (an excellent advocate with whom I once worked on a case when I was a government lawyer). Noonan reportedly told Kneedler that he doesn’t understand the government’s argument and isn’t convinced that the government has one.
Judge Bea, who himself is an immigrant and a Hispanic, apparently did not make his position clear during oral argument, but his questioning of the attorney for Arizona reportedly was pointed. The third judge, Richard Paez, a Hispanic and a Democratic appointee, is thought to be sympathetic to the federal government’s preemption argument.
Meanwhile, the Ninth Cirucit has decided to keep the military’s “don’t ask, don’t tell” policy in place while the Justice Department appeals a district court ruling that found this policy unconstitutional. The vote was 2-1, with two Reagan appointees — Judges Diarmuid O’Scannlain and Stephen Trott – in the majority and a Clinton appointee in the minority. The majority concluded that in the absence of the stay it granted, the lack of an orderly transition in military policy would produce immediate harm. [Note: Even the dissenting judge, William Fletcher, said he “would stay the district court’s order in all respects but one: I would allow the district court’s order to continue in effect insofar as it enjoins the Defendants from actually discharging anyone from the military, pursuant to the Don’t Ask Don’t Tell policy, during the pendency of the appeal.”]
The district court’s decision was one of the most worst cases of judicial usurpation I’ve seen for some time. Judge Virginia Phillips’ opinion explicitly substitutes her view of what will and will not harm the military as a fighting force for the view of the military and of Congress. Ed Whelan correctly calls the opinion “brazen and error-strewn.” Judge Phillips’ biographical information can be found here. Readers are invited to identify the part of it that makes her qualified competently to decide which policies will promote military efficacy.
The Ninth Circuit’s decision does not overturn the district court’s ruling; that ruling will be reviewed on the merits by another panel (unfortunately). But the decision does keep “don’t ask, don’t tell” in place for months, if not years, until the appeal on the merits is resolved or until Congress is persuaded to overturn the rule.

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