Anti-Gay Nevada Lawyers Accuse 9th Circuit of Conspiracy

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.

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  • http://artk.typepad.com ArtK

    “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.”

    Probability… you’re doing it wrong. Finding statistical significance on this tiny sample side is ridiculous to the point of dishonesty.

    Plus, as you point out, this is a really stupid argument even if the statistics were valid. Telling the people that you’re appealing to that you think that they’re dishonest is really, really stupid.

  • krisrhodes

    >. Finding statistical significance on this tiny sample side is ridiculous to the point of dishonesty.

    That is almost certainly untrue.

    http://graphpad.com/quickcalcs/contingency2/

    A single example of result 5/5 and 0/10 gives a P of 0.03, which is the basis level of significance. Of course, this is not the appropriate model to test the hypothesis, but the fact that we reject it is not simply due to sample size.

  • eric

    This is just a guess, but…

    I’m guessing the lawyers are (intentionally or unintentionally) ignoring the presence of other cases. If you just analyzed how 40 judges in could be distributed (in groups of 3) amongst eleven cases, this distribution is strange. But it’s strange in part because I’m betting that when a judge already has a bunch of cases (through random assignment), that judge is no longer considered in the random draw for the next one. So some of those forty were probably not in the random draw for any of the ‘Relevant’ cases to begin with. Another set would be removed from the draw after they were assigned to the first ‘Relevant’ case because that case filled their schedule. And so on.

  • whheydt

    It’s all moot…under the SCOTUS ruling in Perry v. Hollingsworth (aka the “Prop. 8” case), these guys lack standing to bring any action before the appellate court not initiated by the state…and the state isn’t interested in an appeal any more.

    What has always kind of surprised me about Nevada is that they didn’t legalize SSM on their own as soon as it became apparent that SSM was the coming thing. Just think of the business they could have done in all those wedding chapels by marrying same-sex couple when it wasn’t legal in many other states. (Or as the President of the Univ. of Nevada once told a meeting of an ACM SIG with regard to all the slot machines, Nevada is just trying to get their silver back.)

  • Millicent

    Nevadan here. Believe me, many of us have been shaking our heads over the stupid amendiment against gay marriage, because it royally screwed us, ultimately. Think of all the lost revenue! Stupid, stupid, stupid.

  • Millicent

    *amendment

  • John Pieret

    Just think of the business they could have done in all those wedding chapels

    Don’t forget the quickie SSM divorces too!

  • keusnua

    Combinatorics is hard, so I am not going to do the analytical treatment of figuring out what the probability of ending up with a distribution wherein at least one judge has at least 5 cases, and at least one other has at least 4. But I can run a random simulation in Octave in about 5 minutes.

    With 1000 trial runs, in 23 runs we have at least one judge with 5+, and at least one with 4+.

    In 38 runs we have at least one judge with 5+.

    So there was a 2 to 3 % likelihood in the 5+4+ outcome. That is not exactly small. It is certainly not so small as to merit suspicion of foul play.

    (For comparison, rolling double sixes on two dice is 2.8%.)

  • tsig

    “Judge, we lost the last case because you’re crooked.”

    Doesn’t sound like a winner to me.

  • whheydt

    And in (semi-) related news…

    The governor of Alaska wants to appeal. Asked for a stay. Got one until noon Friday. Asked Kennedy for a longer stay. Kennedy checked with the rest of SCOTUS. No stay. Weddings are happening.

    Arizona…district court ruled against the state. Governor says “no appeal”.

    Now waiting to see how long Montana takes.

    In 10th Circuit territory, Wyoming district court has (grudgingly) ruled correctly. Governor already said he wouldn’t appeal.

    It’s getting so that it may be easier to keep track of the states still attempting to ban SSM than to count the ones where it’s unequivocally legal.