That setting has "test case" written all over it.

Does not the AG work for the POTUS who is the one accountable? The AG advises and the POTUS instructs the AG to implement a policy in accordance with the advise. We never did elect a AG as far as I can tell, they are appointed by President Obama with approval from Congress. It's known as the executive branch, led by the President.

a test in advance of what?

I'm saying that there is some Judge on the 9th Circuit, perhaps more than one, who is ready to overturn DOMA.... only the problem is, they can't make the ruling until they've got a case. So they would have to have a case with a plaintiff who works for a federal agency,, and is legally married under state law to a same-sex partner, to bring a lawsuit. Now where might they find one of those?

From the opinion:

So, you are suggesting that one (or more) of the justices in the Ninth "plaintiff shopped" for a properly situated same-sex married Federal employee and encouraged them to bring forth the case?

I don't know how much plaintiff or forum shopping is really necessary for these cases. IANL, but it seems to me that DOMA is actually more likely to be struck down in the courts than the same-sex marriage bans are.

I can see the more conservative members of the judiciary managing to find compelling governmental interests for states to restrict marriage to opposite-sex couples. (I don't think there are any myself, but I can see the conservatives managing to find ones they can believe in with a straight face.) In that case, they can also claim consistency with their federalist principles, since they would be standing firm for the rights of the individual states to define marriage as they see fit.

DOMA is different. Vital records is a state function. When someone is born, dies, or gets married on federal property within the USA, the paperwork is handled by whatever state that property is in. DOMA claims to allow the federal government to effectively override the decisions of individual states on the matter of same-sex marriage and allows the federal government to decline to extend full faith and credit to certain official records of the states. The full faith and credit clause of the Constitution does not explicitly apply to the federal government - it mandates that every state give full faith and credit to the records of every other state - but I think ruling that the clause does not apply to the federal government might be a tough call for even some of our more activist conservatives on the bench.

Why the skepticism? Many of the groundbreaking civil rights decisions were test cases. Lawrence v. Texas, Griswold v. Connecticut, etc. Rosa Parks was a secretary working for the NAACP -- you think it was a coincidence that she refused to give up her seat? I mean, even Plessy v. Ferguson was a test case; Brown v. Board of Education was a consolidation of test cases.

It would be a total career buster for an appellate court staff attorney to involve herself in litigation against her employer unless there was tacit approval from the outset.

Congrats, Curious Blue. After almost 3 years, you win this distinction. My first in this category:

OK, for those who aren't running off in a snit... here's some background, with highlights:



Source: http://www.sfgate.com/cgi-bin/article.c ... z1nAzy73Io









Source: http://www.keennewsservice.com/2011/12/ ... -champion/

I'd note that Alex Kozinski is not noted for reticence.

While I can't add to anything you said about the Ninth Circuit specifically in a subsequent post, I'd have to agree in general about how the personnel of appellate courts behave. Everyone tends to know everyone else's business to the extent it is almost like a large extended family. Often not having much spare time outside of work, the people who work together also tend to socialize together and talk about each other.

If appellate court staff sued the court administration, it would rapidly be known not only within the court itself, but would rapidly become known throughout the entire geographical area covered by the court among the legal community in general. Without anyone doing anything overt, it could become quite difficult for such a person to find future employment.

I suspect that anyone working for the Ninth Circuit probably has qualifications in excess of that elsewhere and even after suing the court administration could find employment elsewhere, depending on the circumstances, it certainly wouldn't be a plus. While I seriously doubt anyone said "hey you'd make a great plaintiff, please go and sue," there are certainly more or less subtle ways of letting it be known that there would not be pushback on the issue.

Looking at it from the outside, and at the chain of events that led to this lawsuit, I speculate that anyone with any political sense within the Ninth Circuit would be able to figure out that taking this plaintiff's course of action would not meet with disapproval, without anyone saying or doing anything remotely improper.

I also found out from background that Golinski has worked for the court for 19 years - so she's no newbie. It looks to me like she had a good relationship with her boss and he went to bat for her. Federal judges are used to having their orders obeyed, so I can't imagine that Kozinski would have been happy with the OPM's direct defiance of his order, valid or not. Nor can I imagine Golinski getting herself tied up in a lawsuit without seeking advice from Kozinski.

Of course... given the history, when it does come up to the 9th Circuit, I think Kozinski has to recuse himself from the case.

Interesting... you ask a question, you insult [orly comment] you get an answer and go all out to post a screenshot of putting someone on ignore.

Do you really think there are no such thing as "test cases"? Ever heard of "oppositional law" practice?

I have no idea whether what CB posits happened in this particular case or not, but it's certainly not beyond the realm of possibility.

I've been suspect of CB since his debut. Last night cemented it for me.

Curious Blue is actually one of the more astute Fogbowzers. Some may not like his/her style, but s/he speaks truth. CB is dead on in the Georgia challenge thread(s).

FIFY

Luvs ya, Mr. Johnson, but can't agree here. She's always been one of the very best at explaining complicated legal concepts to the non-lawyers. Her comments about how the plaintiff must have had pre-approval of Judge Kozinski make perfect sense to me.

CB is damned near a charter member... FEB '09.

That's a long time of suspicion.

She's astute, learned, and straightforward in explaining legal matters.
She certainly has her own style, as we all do, but she's certainly not "suspect."

Hope you kids are right. All I know is I saw he/she wasted no time in jumping right in to diminish/cheapen yesterday's Northern District of CA ruling from being a "win" for equality to nothing more than merely a attempt by some justice(s) of the Ninth to "plaintiff shop" so DOMA could be ruled against in their district.

That's what I witnessed, at least.

I didn't see that. And "test cases" have a long and venerable history in the civil rights movement. Calling this a "test case" does nothing to diminish its importance. That the plaintiff obtained the Chief Judge's permission (or approval) before proceeding did nothing to diminish the case or its importance. I'm not sure that I see what your concern is, Neon. But CB once again speaks truth. Perhaps not as tactfully as some (like me ), but the truth nevertheless.

I don't see the terms 'test case' and 'plaintiff shopping' as anyway diminishing the importance of the case or its ruling. There is good reason to choose plaintiffs who can stand up to the rigors and scrutiny of the press of a case like this. You want the strongest case you can make on the facts both for the issues and for the public sympathy to the case.

And, if I can jump in ... it IS a win for equality.

If anything, if it is a "test case," I would say "good for them" for helping to make it happen.

It surely, surely is.

Neon my friend, you and CB both strongly support marriage equality and equal rights for LGBTs.

I honestly didn't see any attempt to cheapen or diminish yesterday's ruling, she just explained some of the interesting factual details. We're all on the same side here.

Assuming arguendo that the case was encouraged by a 9th Circuit judge that wanted to see a solid case brought forward against the law, I still don't see how that would "cheapen" the ruling in any way. The facts of the case remain unchanged whether or not the plaintiff had encouragement bringing the case forward. The ruling remains unchanged.

To me, all that a "test case" suggests is that the people who believe that the law is unconstitutional took care to make sure that their challenge was based on as clear and unequivocal a set of facts as possible. The plaintiff is still employed by the 9th. She clearly exhausted every possible non-judicial path available before filing. There are no possible questions about the marriage itself. Basically, it seems to this non-lawyer that this case closes off as many possible ways for a court to avoid the key issue as it possibly could. Why would it be bad if that was not an accident?

No matter how the case got to the court, yesterday was a win. A huge win. A clear statement that prior precedent on heightened scrutiny has been overturned by more recent Supreme Court decisions; a thorough analysis of the appropriate level of scrutiny resulting in a decision that heightened scrutiny should apply to measures that attempt to restrict LGBT rights; and a ruling that states that DOMA fails to pass constitutional muster under either heightened scrutiny or rational basis.