The long-awaited Appeals Court ruling on the constitutionality of California’s Proposition 8 will be announced tomorrow.

The breaking news out of the California Supreme Court is that they WILL entertain a full merits consideration of the question certified to them by the 9th Circuit in the Perry v. Schwarzenegger.

The DOMA battle has moved to the US 1st Circuit Court of Appeals, and the DOJ has filed their brief. In short, the brief whines about the burdens a DOMA-less world would place on the federal government, and argues that things would be so much simpler if we just maintained the 1996 status quo until things shake out.

With logic like that, we’d never have Medicare, Medicaid, or marriages of couples from different racial backgrounds.

Stay classy, DOJ, as you argue from your position of privilege.

We have unexpectedly quick news out of the 9th Circuit Court of Appeals on the Perry v. Schwarzenegger Proposition 8 marriage equality appeal. As you will recall, the case is in the 9th on appeal from the three week long evidentiary trial in the Northern District of California last January in front of Judge Vaughn Walker with closing arguments made on June 16 (summary of EW live coverage here) and Judge Walker’s opinion finding such marriage discrimination unconstitutional was issued on August 4th.
The current appeal had oral argument less than a month ago, on Monday December 6th.

Now we have the surprisingly fast first decision, if you can call it a “decision”. It is really a disguised punt.

Judge Vaugn Walker has issued an extremely significant decision in the illegal wiretapping case of al-Haramain v. Bush/Obama. He has awarded damages and attorney fees to the plaintiffs on their claims of illegal and unconstitutional surveillance by the US government.

Liveblogging the oral arguments in the appeal to the Ninth Circuit Court of Appeals, Perry v. Schwarzenegger.

Liveblogging the oral arguments in the appeal to the Ninth Circuit Court of Appeals, Perry v. Schwarzenegger.

The bottom line is, early odds are on a 2-1 decision upholding Judge Vaughn Walker’s fine decision in Perry. The one stumbling block, of course, is the issue of standing, and on that I still have some concern that Hawkins, who can be a stickler on procedural details, might align with Smith to hold that there is no standing on the appeal. So, while there are still problems with the standing issue and therefore there should be no premature wild celebrations today, it is nevertheless a very favorable panel the Perry appeal has drawn. For that, there should be some joy.

I started to write this post last night with a million thoughts swirling in my head on the plethora of important cases Walker has handled over the years and erudite opinions rendered thereon. There is far more to the man’s record than al-Haramain and Perry v. Schwarzenegger; he also sat on such blockbuster cases as the Hearst/ SF Chronicle Antitrust litigation, the Apple/Microsoft intellectual property battle, and the knock down drag out Oracle/Peoplesoft takeover war. And hundreds of others over the years that, from every opinion of his I have read over the last couple of decades, he treated with pretty much the same dedication and attention to detail as you see in the landmark cases you know him from now. Vaughn Walker was both driven and meticulous, they simply do not make many like that; even in the cream of the crop hallowed halls of the Federal judiciary, Vaughn Walker stands out and above.

With the long anticipated retirement of Justice John Paul Stevens, it was important for President Obama to appoint and get confirmed a new justice so there would not only be a full compliment of justices on the court, but to insure the ideological balance of the court was maintained. By selecting Elena Kagan, Obama certainly did not pick the most qualified person for the job, nor did he maintain the ideological balance particularly as Kagan undoubtedly moved the court to the right at least to some degree.