Arizona immigration clash headed for controversial appeals court
The epic legal struggle over Arizona’s immigration crackdown has landed in a San Francisco-based federal appeals court that is all too familiar with being the center of the nation’s attention — and its inevitable label as the nation’s most liberal court
From once striking down the Pledge of Allegiance in public schools to overturning death sentences with regularity, the 9th U.S. Circuit Court of Appeals has long been a favored target of conservatives who have jumped at any chance to blast the country’s largest appellate court. Some groups supporting Arizona’s strict immigration law already have said they believe their best chances lay in the U.S. Supreme Court, not the 9th Circuit.
But as the Arizona case reaches its marbled doorstep, having inflamed the national debate over illegal immigration, the 9th Circuit is not so easy to stereotype. While still considered more liberal than most appeals courts, this is not former President Jimmy Carter’s 9th Circuit. The appeal of last week’s decision by an Arizona judge blocking the most controversial provisions of Arizona’s immigration law is just as likely to be decided in the coming months by the 9th Circuit’s moderate to conservative judges as by its liberal wing.
“It’s changed radically,” said Kevin Johnson, dean of the UC Davis law school and a clerk during the 1980s for 9th Circuit Judge Stephen Reinhardt, the so-called “liberal lion” of the federal judiciary. “It’s a much more
conservative court. You’ve had eight years of President (George W.) Bush nominating people, and he didn’t nominate any liberals.”
The 79-year-old Reinhardt, who has insisted for years that even former President Bill Clinton’s appointees were not liberal enough, bristles at the fact the 9th Circuit remains tethered to its reputation as a liberal court.
“With the 9th Circuit, people get ideas,” Reinhardt said. “It clearly is not a liberal court. It clearly is a moderate to conservative court.”
Of course, not everyone agrees, and the 9th Circuit is still dominated by appointees of Democratic presidents, particularly Clinton. Even with an infusion of seven Bush picks, Republican appointees make up just 10 of the court’s 25 full-time judges, with four vacancies available for the Obama administration to fill. (The White House has nominated Berkeley law professor Goodwin Liu and Arizona federal Judge Mary Murguia to fill two of those, and Republicans have targeted Liu as a potential liberal.)
The court shapes the law for nine western states, including California, and has had a hand in deciding a host of crucial cases over the years, from California’s recall election and a challenge to Proposition 209, to blocking executions and, of course, its infamous 2002 ruling barring the pledge in schools because it contains the phrase “under God,” a ruling later set aside by the Supreme Court. The 9th Circuit, at some point, also will inherit the challenge to California’s same-sex marriage ban.
Is it still liberal? 9th Circuit Judge Carlos Bea, a Bush appointee, believes so, saying overall it is “predictably more liberal in its decisions” than most other federal appeals courts. Arthur Hellman, a University of Pittsburgh law professor and 9th Circuit expert, says that challengers to the Arizona immigration law would surely prefer to be in the 9th Circuit than anywhere else.
“The odds are better in the 9th Circuit than any other circuit,” Hellman said. “It is still a court that is more liberal overall than most, if not all, of the other federal circuits.”
But legal experts and the judges themselves also say the 9th Circuit is more unpredictable than ever. While some of the Clinton appointees are decidedly liberal, most are considered centrist and a few quite conservative, such as Washington state’s Richard Tallman.
One 9th Circuit Clinton appointee said the Bush judges have nudged the 9th Circuit to the center but, as Bea puts it, “not all of them vote in lock-step.” It was a Bush appointee, Consuelo Callahan, who wrote a ruling last year invalidating California’s violent video game law, an arguably conservative cause now before the Supreme Court.
On immigration issues, the 9th Circuit is generally in the corner of immigrant rights, particularly in asylum cases. The court has frowned on immigration restrictions that go too far, in 2000 ruling it illegal for the U.S. Border Patrol to consider “Hispanic appearance” in making an immigration stop.
But in 2008, the 9th Circuit upheld another Arizona immigration law that revokes the business licenses of employers who hire illegal immigrants. That decision, written by Carter appointee Mary Schroeder, is being heard in the Supreme Court’s next term, a case some legal experts say will provide precedent for the broader Arizona immigration legal fight now unfolding in the 9th Circuit.
In fact, the 9th Circuit, which for years has been ridiculed as the appeals court most overturned by the Supreme Court, fared far better during the last term. Some 9th Circuit judges don’t put much stock in that development, but others see it as evidence the 9th Circuit is no longer as much of a legal renegade.
“I’m pretty happy with the balance of the court,” said Chief Judge Alex Kozinski, one of the court’s few remaining Reagan appointees. “If you lined up the conservatives and the liberals, you’d say it’s pretty close. A number of people, you just can’t peg them.”
In the 9th Circuit, a case such as the challenge to Arizona’s immigration law in the end may depend on the luck of the draw — with so many judges, the random makeup of a three-judge panel that will hear the case first can be crucial. This is also true when the court votes to rehear a case with an 11-judge panel, a frequent development in hotly contested matters. An 11-judge panel last year heard a challenge to Alameda County’s ban on gun shows, and it was an eclectic mix of Reagan, Carter, Clinton and Bush appointees.
Legal experts say that may well be the type of 9th Circuit panel that considers Arizona’s law and whether to uphold a Phoenix judge’s preliminary injunction preventing much of it from going into effect.
“This is the quintessential case where it’s a close legal issue, and it’s one of those cases where the outcome on appeal will ultimately depend on the makeup of the panel,” Hellman said.
Contact Howard Mintz at 408-286-0236.
The nation”s largest federal appeals court, while widely considered moving more toward the center in recent years, remains a majority of Democratic appointees and largely dominated by appointees of former President Bill Clinton.Democraticappointees: 15Republicanappointees: 10*Vacancies: 4
President Carter: 3President Reagan: 2President GeorgeH.W. Bush: 1President Clinton: 12President George W. Bush: 7
*President Barack Obama has two nominees pending in the SenateSource: 9th U.S. Circuit Court of Appeals, Mercury News research
<a href="http://www.mercurynews.com/news/ci_15649670?source=rsstag:news.google.com,2005:cluster=http://www.mercurynews.com/news/ci_15649670?source=rssSun, 01 Aug 2010 00:45:00 GMT 00:00″>Arizona immigration clash headed for controversial appeals court
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