Judge Stephen Reinhardt ruled moments ago on a motion filed by the Perry v. Schwarzenegger defendants, the supporters of Prop 8, that he should recuse himself from the three-judge panel that will hear the case next Monday, December 6th.  He denied the motion.

We’ll be live-streaming the arguments on Monday at 1:00 for faculty and students at the law school. Here’s the back story on the judges who’ll be hearing the arguments, from the San Francsico Chronicle.

A staunch liberal, a conservative Republican from Idaho and a Clinton centrist were announced today as the members of the federal court panel that will hear next week’s appeal of a ruling striking down California’s ban on same-sex marriage.

Judges Stephen Reinhardt, N. Randy Smith and Michael Hawkins of the Ninth U.S. Circuit Court of Appeals will hear two hours of arguments Dec. 6 in San Francisco over Proposition 8, the November 2008 initiative that defined marriage as the union of a man and a woman.

The panel was chosen by random selection several months ago but was not disclosed until a week before the hearing, a court policy designed to limit the parties’ ability to seek grounds to disqualify the judges.

Reinhardt, 79, a former Democratic National Committee member appointed by President Jimmy Carter in 1980, is widely viewed as the most liberal judge on the appeals court and one of the most liberal in the nation.

He was one of the judges on the court panel that declared the phrase “under God” in the Pledge of Allegiance to be a violation of the constitutional separation of church and state. The U.S. Supreme Court later threw out the case on a technicality.

Reinhardt also wrote an opinion declaring that people have a constitutional right to commit suicide with a doctor’s assistance. In addition, he is a member of the three-judge federal panel that found health care in California’s prisons was so bad that it violated inmates’ constitutional rights.

The judges said prison overcrowding was mainly to blame for the poor quality of care, and ordered the state to reduce the inmate population by 40,000 in two years. The Supreme Court will hear arguments Tuesday in the state’s challenge to that ruling.

Smith, 61, was appointed by President George W. Bush in 2007. He is a former trial judge and ex-chairman of the Idaho Republican Party.

One of his opinions this March dissented from a ruling that allowed parents of a child with learning disabilities to sue a school district for ignoring the problems and failing to arrange educational help. Smith said the law authorizes parents to sue only over a school’s wrongful actions, not its negligence or failure to act.

Hawkins, 65, a former federal prosecutor in Arizona, was appointed by President Bill Clinton in 1994. He is generally considered a moderate Democrat, but some of his prominent opinions have sided with liberals.

He dissented from a 1999 ruling that upheld a local ordinance in Alaska allowing religious landlords to refuse to rent to unmarried couples. Last year, Hawkins wrote a ruling that would have allowed foreign terrorist suspects to sue for their alleged kidnapping and torture in a CIA-run program, but an 11-judge court panel ordered the suit dismissed in September on state-secrets grounds.

The three judges will be considering the ruling that Chief U.S. District Judge Vaughn Walker of San Francisco handed down in August finding Prop. 8 to be unconstitutional. Walker said the measure discriminated on the basis of sexual orientation and gender and did nothing to protect married heterosexual couples or marriage as an institution.

Another appeals court panel has put Walker’s ruling on hold. Before deciding whether to uphold Prop. 8, the appeals court will consider whether the initiative’s sponsors have the right to argue for the measure on the state’s behalf. Both Gov. Arnold Schwarzenegger and Attorney General Jerry Brown have declined to appeal the ruling.

The losing side in the appeals court ruling could ask the full court for a rehearing before a larger panel or appeal directly to the U.S. Supreme Court.


  1. Who'll Judge the Prop 8 Appeal? Liberal Refuses to Recuse Himself Over Objections that He's Too Liberal http://wp.me/ploC4-Nh

  2. Who'll Be Judging the Prop 8 Appeal – Columbia…

    Here at World Spinner we are debating the same thing……

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