- The Washington Times - Friday, October 31, 2014

A traditional values group is contending that an independent statistical review suggests there has been “panel-packing” on the 9th Circuit Court of Appeals to assign more liberal judges to court battles over gay marriage — and now it’s showing its work.

On Oct. 13, the Coalition for the Protection of Marriage presented what it called “strong, solid evidence of something really quite serious” — a statistical report that showed “a deviation” from the 9th Circuit’s supposedly neutral, impartial process for judge and panel assignments, Monte N. Stewart, an attorney for the Nevada-based group, said Friday.

The coalition last week created a website that “invites the world and, particularly, able statisticians” to review the raw data on which judges on the court are assigned to which cases, Mr. Stewart said.

The 9th Circuit, based in San Francisco, is by far the largest of the 13 courts of appeal, with 29 active judgeships.

The Oct. 13 report, prepared by James H. Matis, professor emeritus of statistics at Texas A&M University, concluded that it was “unlikely” that two 9th Circuit judges — Judges Marsha S. Berzon and Stephen R. Reinhardt — would have been randomly assigned to hear six of the 11 gay rights cases to come before the appellate court since 2010.

The odds against their assignments via “neutral selection” ranged from 60-to-1 to 441-to-1, the Matis report said.

On Oct. 7, Judges Reinhardt and Berzon, joined by Judge Ronald M. Gould, unanimously struck down laws against gay marriage in Nevada and Idaho as unconstitutional.

The coalition has asked for a 9th Circuit en banc review of that decision, partly because of “the appearance” of “panel-packing” — or placing preselected judges on particular cases with the intent to secure a particular outcome.

The coalition “urges full adherence by all to the rule of law in this case,” said Todd Larkin, president of the coalition.

“Our society’s essential marriage institution deserves no less.”

David Madden, public information officer for the 9th Circuit Court of Appeals, said he couldn’t recall ever seeing other complaints that relied on statistical probabilities such as the one filed by the coalition.

The 9th Circuit’s judicial selection and assignment process — which is detailed on its website — is to draw up random panels of judges “far in advance” of cases that will be heard, said Mr. Madden.

Thus, judges on a panel theoretically don’t know what cases will be coming. “The process serves us well,” he said.

Tara Borelli, a senior attorney for Lambda Legal, who argued the Nevada case, told the San Diego Gay & Lesbian News that the coalition’s claims of improper judicial selection were “unfounded, desperate and sad.”

“We are embarrassed that they have stooped to attacking the integrity of our federal judiciary rather than accepting an outcome they disagree with [with] a modicum of grace,” she said.

The coalition, however, believes there’s at least an appearance of bias, especially since 18 of the nearly 30 active judges on the 9th Circuit weren’t selected for any of the 11 recent gay rights cases.

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