Was it coincidence Ninth Circuit Judge Michael Daly Hawkins — who was on the motions panel on the Prop 8 appeal — is now one of three who will decide the merits of the gay marriage case?
Or that Judge N. Randy Smith — who heard a related matter in the gay marriage case before it was tried in district court — is on the panel?
Ninth Circuit Chief Judge Alex Kozinski says it’s pure chance.
He described the process in the Perry case as going down like this: The merits panel (the one that granted a stay pending appeal, meaning no gay marriage in California right now) put the case on an expedited schedule and set it for oral arguments in December. And it was set for San Francisco, naturally, since the case was tried here before Northern District Chief Judge Vaughn Walker. And as far as which of the December panels would get the case, it was a random assignment made by the clerk’s office. This panel, the judge says, was put together 18 months ago.
Kozinski acknowledged that in less famous cases judges sometimes ask to get a case if, for instance, he or she has already developed some knowledge base on the matter.
“We were extra careful to make sure nothing like that happened in this case,” Kozinski said today.
Joining Hawkins and Smith on the Perry v. Schwarzenegger appeal is Stephen Reinhardt. The panel makeup was made public today.
Always one to enjoy the more high-profile cases, Kozinski said he was a bit bummed he isn’t on the merits panel, but said he may travel from his office in Pasadena to be around for Monday’s oral arguments.
“It’ll be quite a show,” he said.