Conservative Panel May Revive Prop. 209, Experts Say

SAN FRANCISCO —  The decision by a highly conservative panel of federal appeals court judges to retain control of the fate of Proposition 209 is causing legal analysts to predict the initiative may soon be revived.

The predictions come as both sides in the fight over the initiative are speculating that the other side may have engaged in “judge shopping” to obtain a favorable ruling.

Late last year, U.S. District Judge Thelton Henderson, a former civil rights attorney widely considered among the more liberal federal judges in the state, issued a preliminary injunction that forbade state officials to put Proposition 209 into effect. The measure, passed by 54% of the voters, would dismantle government affirmative action programs.

“There is a good chance the preliminary injunction does not survive this [appeals] panel,” said McGeorge School of Law professor J. Clark Kelso, a Republican legal analyst.

Initially, conservatives had objected that opponents of Proposition 209 had unfairly maneuvered to have Henderson consider their case.

Then in January, supporters of the initiative found a receptive audience in three Republican-appointed judges on the 9th U.S. Circuit Court of Appeals, who were serving that month as a “motions panel” chosen at random to consider emergency legal issues. Supporters of the initiative had asked those judges to suspend Henderson’s injunction.

Several days ago, the same judges rejected a request by opponents of Proposition 209 that they hold a full hearing on whether the injunction should be completely overturned. That decision has led both sides to speculate that the judges are now close to a ruling that could end the injunction.

Because of the conservative leanings of the three judges on the appeals panel, supporters of Proposition 209 have expressed optimism that their arguments will prevail. Other analysts, however, caution that appellate judges are often unpredictable and must make their rulings within narrow legal confines.

Still, the initiative’s proponents could not have been happier with their reception from the panel during arguments earlier this year. Judge Andrew Kleinfeld, reputed to be one of the most conservative members of the federal judiciary, made it clear that he thought Proposition 209 is constitutional.

Remarking on the American Civil Liberties Union’s lawsuit against the proposition, Kleinfeld said: “I’m concerned that [the suit] turns government of and by the people . . . to government of the people by those with the highest [law school admission test] scores.”

Los Angeles lawyer Manuel Klausner, representing the sponsors of Proposition 209, is enamored with the makeup of the panel: Kleinfeld, who as a lawyer once tried to ban gay magazines from Alaska schools, was appointed by former President George Bush, and Judges Diarmuid O’Scannlain and Edward Leavy were appointed by former President Ronald Reagan.

“I think this is a very good panel of judges in terms of their intellect,” Klausner said, enumerating their qualities. “I think we are going to prevail. I am very optimistic.”

But liberal opponents of Proposition 209 note that under federal court rules, the 9th Circuit cannot overturn the injunction without finding that Henderson “abused his discretion.” In other words, the appellate judges would have to find that Henderson “doesn’t know the law,” said USC law professor Erwin Chemerinsky.

“I think it would be extremely difficult to find an abuse of discretion,” the liberal law professor said.

Already, however, the appeals court panel has surprised the lawyers who challenged Proposition 209.

The conservative panel, whose members were appointed at random, was selected to hear legal motions in January. The court has one such “motions panel” each month. One of the motions that month was the request by Proposition 209 supporters for an emergency order suspending the injunction that blocked the initiative.

Normally, a motions panel would decide the emergency request, and then the case would be assigned to a second “merits panel” once the final written arguments in the full-blown appeal have been filed.

A “merits” panel is also selected at random from the 9th Circuit, which is about evenly divided among Republicans and Democrats but still considered more liberal than the rest of the federal judiciary. The “merits” panel gives the appeal a more thorough review and hands down a ruling with longer term consequences.

But rather than rule on a stay or suspension and then pass the case along, the January motions panel decided to keep the case for the whole appellate process, delighting foes of affirmative action.

“It may be they are doing this because it serves judicial economy,” Chemerinsky said. “It may be this is a particularly important and interesting issue, and they are fascinated with it and want to keep it. And it may be they have a political agenda they wish to serve.”

Mark Rosenbaum, legal director of the ACLU of Southern California, insisted that the panel’s decision to keep the case was “unprecedented” since a new rule governing such procedures was established about 18 months ago.

If the panel lifts the injunction, Gov. Pete Wilson and cities and counties would be free to dismantle affirmative action, at least until further legal proceedings took place.

The sharp political distinctions among the various judges hearing arguments about Proposition 209 have sparked charges of shopping for judges--a charge that both the ACLU and the sponsors of Proposition 209 have denied.

Nonetheless, lawyers commonly try to have their cases heard by judges perceived to be sympathetic to their side.

“To complain about judge shopping doesn’t reflect the reality of the way you litigate,” Kelso said. “You can judge shop in both federal and state court. . . . There is no rule against it, and you would not be doing good lawyering if you did not try to make advantage of the way the system was set up.”