Despite New Claims, Judicial Stacking More Myth Than Reality

December 2, 2014 – In The News
Law360

Mark Connot was quoted in the Law360 article, “Despite New Claims, Judicial Stacking More Myth Than Reality.” Full text can be found in the December 2, 2014, issue, but a synopsis is below.

The recent challenge to the appointment of the Ninth Circuit panel responsible for striking down Nevada’s same-sex marriage ban has brought scrutiny to the way circuit court case assignments are handed out. However, attorneys note that there is little truth behind allegations that certain panels are unfairly stacked with liberal judges.

The Ninth Circuit recently ruled that the constitutional ban on same-sex marriage in Idaho and Nevada violate the equal protection rights of gays and lesbians and cannot be justified by the states' claims that the bans encouraged child-rearing.

“On the merits of their argument it looks like they’re using statistics and have a statistical expert, but they’ve looked at a narrow range of cases from a certain time frame,” explained Mark Connot. “People can always find a way to pick and choose statistics to support a certain viewpoint. I don’t fault them for it, but it’s sort of a bootstrap way to throw something else in asking for a rehearing.”

Connot noted that the coalition has not specifically alleged any impropriety and has instead rested its argument on the need for rehearing to cure the mere appearance of impropriety, which he believes has more to do with legal tactics than a supposed miscarriage of justice.

“They knew they had an uphill battle to prove something nefarious occurred, and the fallback is always to focus on the appearance of impropriety. None of this was raised when the panel was first announced, and it wasn’t until they received an adverse decision that it came up,” stated Connot.

According to Connot, even assuming that the panel selection process could be tampered with to suit an ideological agenda, but it’s very unlikely that such meddling would lead to biased rulings down the line.

Connot explained that “at the time those panels are put together you don’t know what cases those panels are going to get, so you could try to stack a panel but that panel may simply wind up on a garden variety personal injury case or some other nonpoliticized issue. Anything’s possible, but the probabilities of successfully manipulating a case are pretty slim, and at some point somebody’s probably going to notice. Just like everything else, it’s hard to keep a secret.”