Under the big top in SVREP v. Shelley

I wasn't able to watch the live argument in today's rehearing by a mini-en banc eleven-judge panel of the Ninth Circuit in Southwest Voter Registration Education Project v. Shelley, but I just finished watching it via taped streaming video available from C-Span's website.  An email from reader A.J. Pate alerted me to watch for the most priceless moment, at the very end of the hour (somewhere around 1:06:40 on the RealPlayer counter). 

Earlier in the argument, ACLU attorney Mark Rosenbaum had obviously been frustrated when various judges' questions repeatedly diverted him from his persistent efforts to address the plaintiffs' allegations that punchcard voting machines violate the Voting Rights Act of 1965 — an alternative basis for injunctive relief that had been rejected by the district court and then largely ignored by the per curiam three-judge panel opinion.  He returned to the podium to use the little bit of time that had been left to him for his final rebuttal by his co-counsel Larry Tribe, but was told that he had only thirty seconds to speak "if he has something that he really needs to say."  Rosenbaum drew his first hearty laugh from the judges deliberately when he began by quipping, "I have three points, and I'll try to make them all at once."  But in his understandable rush after that, in trying to summarize evidence from the plaintiffs' expert on voting machine disparities, Rosenbaum had a classic Freudian slip of the tongue:

MR. ROSENBAUM:   What Dr. Brady did was, he took California precincts, and he took zero percent minority precincts and he took 100 percent minority precincts, and he asked, "Was there any difference here?"  And what he found, in terms of causation, what he found was that there was a three times disparity.  Then he looked — and this is at figure three — then he looked at those districts that had changed, changed from punch-card to other machines.  And he found — and this is at pages 165 and 167 of the record — that the disparity virtually disappeared.  That it completely examined [sic].  That is, Your Honor, the strongest case that has ever been in this circus — circuit — with this — [Interrupted by laughter]

CHIEF JUDGE SCHROEDER:   Perhaps you should just quit while you're ahead.

MR. ROSENBAUM:   Guess who's the biggest clown?  [continued laughter as he sits down]

From my personal experience — both from the year I spent clerking for a circuit judge and from the two dozen or so state and federal appeals I've been involved with since then — I believe that the importance of appellate oral arguments is highly overrated.  Written briefs win cases on appeal; a blunder or a concession at oral argument can possibly lose one, but otherwise oral presentations are unlikely to have significant impact.  Even the most articulate appellate advocates — and many would rank Tribe among them, although I thought he was pretty flat today — do a far better job of expressing complex thoughts in a compelling fashion in their writing than they can in the give and take of rapid-fire questions. 

The judges' questions and comments can sometimes give clues toward their leanings, but if there's any real persuasion being done on the day of oral argument, it's more likely to occur in the private conference among the judges afterwards — when one pithy sentence delivered by an esteemed judge who may have said nothing during the public argument may nevertheless have a decisive impact on any undecided colleagues.

I saw no case-losing blunders or concessions in today's arguments.  Judge Alex Kozinski was clearly the star of the hour; Chief Judge Mary Schroeder was surprisingly subdued.  Many have predicted that Judge Kozinski will lead the block of judges who vote to affirm the district court and allow the election to proceed on October 7th as scheduled.  He played the traditional game of asking a few "have you stopped beating your wife" questions to the lawyers representing the State and Intervenor Costa, but he really skewered Tribe and Rosenbaum.  In particular, Judge Kozinski and several other judges made a large to-do about the proper standard they should use to review the district court's ruling — grilling both sides as to whether, and to what extent, they are obliged to defer to the district judge.  (As I pointed out in my original post criticizing the merits of the Ninth Circuit panel's decision, it erred in giving no deference to the district court's factfinding and weighing of competing interests, but the district court also shot itself in the foot by failing to hold an evidentiary hearing or to make explicit findings of fact that would have to be upheld unless "clearly erroneous.")

For what it's worth, here are my predictions:

• Chief Judge Schroeder will be in the majority but will throw a large chunk of raw meat to conservative critics of her court by designating Judge Kozinski to write for a large majority on the eleven-judge panel — perhaps even a unanimous one — who vote to affirm the judgment of the district court. 

• Judge Kozinski will go out of his way to disavow the panel opinion's reliance on Bush v. Gore, which could be done in two paragraphs and a one-sentence quote:   "The question before the [Bush v. Gore Supreme] Court [was] not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections." 

• He'll then hold that at some theoretical level of error, variations in accuracy of different voting systems can give rise to an equal protection violation; but that wherever that level is, it's far higher than what the plaintiffs in this case submitted proof to establish, especially since their evidence failed to consider the possibility of the error rate differential between different systems dropping after a possible recount for close elections. 

• He'll also include ringing language in the "balancing of interests" that must be done in injunction cases to repudiate the panel's meme of "we're federal judges, and the California Constitution can 'merely highlight' what's in the public interest of Californians."

And the election will proceed on October 7th as scheduled.