Lawyers for a private group that is defending Nevada’s law against same-sex marriage (the state decided not to defend it any longer) are asking for an en banc rehearing by the 9th Circuit Court of Appeals, which struck down that law last week along with a similar law in Idaho. They’ve got a curious strategy, to say the least. They’re accusing the appeals court of a conspiracy against them:
From January 1, 2010, to the present, this Court has assigned to merits panels eleven cases involving the federal constitutional rights of gay men and lesbians, what we refer to as the Relevant Cases. . . . Judge Berzon has been on five of those panels. Judge Reinhardt has the next highest number, with four panel assignments. With two, Judges Schroeder, Thomas, and Alarcón are the only other judges with more than one assignment. Seventeen, including District Judge Bennett, received one assignment. Eighteen of the judges with active status during any part of the relevant time period received none…“Careful statistical analysis indicates a high likelihood that the number of Judges Reinhardt and Berzon’s assignments to the Relevant Cases . . . did not result from a neutral judge-assignment process.”
Uh, no. Case assignments are done by a random drawing, as required by federal court procedures. The chief judge of the 9th Circuit, Alex Kozinski, is a Reagan appointee who has long engaged in intellectual battle with Reinhardt, who used to be chief judge of the circuit. The notion that he rigged the process is absurd. And if it was, this is the last kind of argument you want to make to get them to take you seriously. You lost. Get the hell over it.