Losing is hard. Just ask abortion-rights activists, or campaign-finance-reform advocates, or feminists, or unions, or atheists. Every one of those groups has been clobbered at the Supreme Court for years, and each has complained bitterly about the ostensible invalidity of the legal doctrine that rendered them losers. Gay marriage opponents have recently discovered the sting of failure in the courts, too. What’s their response? The judges were crooked.
That’s the brazen claim currently being peddled—in court!—by the Coalition for the Protection of Marriage, an anti-gay group. According to a brief the coalition filed in the 9th Circuit, the court’s October ruling in favor of gay marriage shouldn’t be trusted, and the court must rehear the case entirely. Their logic is straightforward. The 9th Circuit, like every appellate court, assigns a three-judge panel to every case. These judges are randomly drawn from the circuit’s entire pool. Two passionately liberal judges served on the latest gay marriage case, and they happen to have served on several other gay rights cases, as well. The odds of this occurring are low. Ergo, something is rotten in the 9th Circuit.
To be fair, the coalition doesn’t quite come out and say that the circuit unethically violated its own rules. Rather, it asserts that a pro-gay ruling from a liberal panel creates “the appearance” of malfeasance, an appearance that can only be remedied by a rehearing of the case by less liberal judges. These are clever wiggle words, but they hardly mask the true gravamen of the complaint: that several judges on the circuit are unscrupulous and corrupt.
Over at the New York Times, Adam Liptak provides a solid explanation as to why two liberals wound up on a large number of gay rights cases. Apparently, the massive circuit—it contains 29 judges, too many by some estimates—doesn’t use total statistical randomness in fast-tracked cases. When a case needs to be heard quickly, the circuit assigns it to the available panel with the most senior presiding judge. And Judge Stephen Reinhardt, one of the liberal judges targeted by the coalition, is a Carter appointee, making him inordinately likely to wind up on fast-tracked cases.
There’s nothing illegal or deceitful about this method, which has since been abandoned; the 9th Circuit isn’t bound by law or judicial ethics to devise a purely random selection process. The crucial point is that judges were not and could not be assigned to certain cases due to their ideologies in order to ensure a specific outcome. So long as that never occurred—and there’s just no reason to think it did—the 9th Circuit did nothing wrong.
The Coalition for the Protection of Marriage is a pretty extreme group, and I’m not particularly shocked to see them baldly question the integrity of judges. But I’m startled to see otherwise rational commentators join the chorus of conspiracy theorists. Most notably, Ed Whelan—a former clerk for Justice Antonin Scalia—penned a strange post at the National Review in October in which he “wonder[ed] whether nefarious hijinks in the Ninth Circuit clerk’s office in San Francisco” accounted for the judge selection in the gay marriage case. Whatever else one thinks about Whelan, he is undoubtedly a brilliant man, and I’m disappointed to see him lend these absurdities any credence. But perhaps there’s a simple explanation for this dalliance with paranoia. Scalia once wrote that principle and reason become distorted whenever they cross paths with abortion. If this ridiculous kerfuffle is any indication, the same would seem to be true of gay marriage.