CDAAIIAFEBAMN v. Nobody

UPDATE 2: Well, that didn't take long. The 9th Circuit affirmed the district court's dismissal of the case in a relatively short decision. Most of the discussion is focused on Yudof's 11th Amendment claim, not the merits. Here's the takeaway: "The bottom line is that Wilson II remains the law of the circuit, and the district court faithfully applied it."

UPDATE: Asking a circuit panel to overturn a prior panel risks an opinion like this.

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A few days ago, the Ninth Circuit heard argument in Coalition to Defend Affirmative Action v. Brown. (The appellant is known as BAMN, although a more correct acronym would be CDAAIIAFEBAMN, even if you drop all the articles.) Like other important cases, the Court recorded the hearing and uploaded it online.

Now, my general legal ignorance is particularly acute in this area, so I can't comment on the strength of either argument. But the video gives some clues, and here are my observations:

1. There is no quicker way to lose an appeal than asking a circuit panel to overturn a prior circuit panel. They can't. So unless you are putting all your eggs in the basket of en banc reconsideration*, you have to put 110% of your energy into distinguishing the precedent. It should be your No. 1 objective. And here, the appellants don't really seem all that into doing this.
   
   * This would be a pretty dumb strategy, by the way.
   
   
2. If you stop getting questions, and the judges are just looking bored while you drone on, then you've already won or lost the panel. In either case, take the hint and sit down.

What I find most interesting is that, like the Prop. 8 case, the California government has refused to defend the constitutionality of the voter proposition. In fact, they argued against it, leaving the proposition's proponents to defend it in court. Now, I personally think the voter initiative system is terrible, and I vote against nearly every voter initiative as a matter of principle. But still, voter initiatives are the product of direct democracy, and they are constitutional amendments to boot. The California DOJ has at least as much of an obligation to defend the legality of the California Constitution as it does the laws passed by the California legislature.

I respect that Governor Brown doesn't agree with Proposition 209 as a matter of policy. But that can't be a good enough reason on its own to refuse to defend it. The Ninth Circuit has already held that Prop. 209 is facially constitutional, so the present litigation appears to be an uphill battle (and one that panel--comprised of two Clinton appointees--doesn't appear to support). Unless the governor has a strong argument for an initiative's constitutionality, I think he has an obligation to do his best to defend it in court.

And what if an initiative's proponents do not have enough resources to adequately defend the initiative (that is, the California Constitution)? Does the Court then enter a default judgment and invalidate the state constitution? So many aspects of this trend seem problematic to me.