Thursday, July 22, 2010
Predicting the SB 1070 Day
Before any Plaintiff ever stepped forward (you knew there were going to be some), before any lawsuit was ever filed, and before the federal government joined the fray, I felt like SB 1070 would not be enjoined in United States District Court in Phoenix, would quickly be appealed to the Ninth Circuit Court of Appeals in San Francisco, where that court would issue a stay against it while its legality was litigated. If the state of Arizona then were to apply to appeal that order the United States Supreme Court, the high court would decline to hear it.
Now that I have 100 times the information as I did back then, if I were a betting man, I would still feel it’s a good bet. I say that with one caveat—it is awfully difficult to tell from my perspective what US District Judge Susan Bolton will ultimately do as a result of today’s hearing.
I would not expect a decision today, though I believe she is going to have to issue one soon enough for the aggrieved party to take emergency appeals to the Ninth Circuit, and then to SCOTUS should it so decide. Bolton has reportedly implied to attorneys of record in the cases that it is not a given that she could even issue a decision prior to July 29, 2010, the effective date of SB 1070.
I believe that to be bluff and bluster. Why I do not know, because there is zero chance that the parties in this matter are going to settle their differences prior to her decision. (the common reason why judges take such positions—they would rather not have to decide disputes, particularly intense and controversial ones. That way they for certain avoid what they perceive as the worst outcome in any and every case that comes before them—reversal on appeal by a higher court)
In the longer run (past the request for injunction), SB 10170 has no chance of survival. It is about as constitutional as Jan Brewer’s qualifications to govern a state in the union.
Today’s request for injunctive relief before Judge Bolton is a much trickier call. She is difficult for an outsider to get a read on.
If you really wanted to get an accurate picture of her and what she might do in this essentially criminal case, you’d speak with a criminal attorney who practices in front of her regularly in criminal cases, and also agree that anything he or she tells you is not for attribution.
But the MSM, of course, is not doing that. It speaks with the former president of the State Bar of Arizona, a former US Attorney, and Bolton’s old cronies from her days on the state court bench of Superior Court in Maricopa County. These are all politicians who specialize in saying absolutely nothing even when they are trying to say something meaningful.
For example, “Bolton, 58, has a reputation as a no-nonsense judge. (What judges seek reputations as ‘nonsense’ judges?)”; “She is known for focusing rigorously on the letter of the law. (Again, what judges build reputations on turning a blind eye to the letter of the law?)
“She's smart enough to know that whatever she rules, it's going to be appealed,…She's going to do a good job gathering the facts and making a clear record so the appellate courts can make their ruling. (Any federal judge knows this is going to be appealed.);
"I think she would be the best judge to have on this type of case," [one person describing Bolton as a down-the-middle jurist with a knack for handling complex cases while possessing rich judicial experience that includes stints in criminal, civil, family, juvenile and drug courts] (just a way of saying she had her own practice before becoming a judge rather than working at a firm)
A look at her history does not reveal much. She was born in Philadelphia in 1951, and earned her bachelor's and law degrees at the University of Iowa. That is weird in itself unless she went there on academic or athletic scholarship, or had family ties there. Who goes from Philly to the middle of Iowa? (with all due respect to Iowa City, which is a fantastic place to go to any Big Ten sporting event)
She came to Arizona in 1975 to clerk for a judge at the Arizona Court of Appeals. She went into private practice shortly thereafter. (Usually for a judge’s clerk that means she could not find a job at a firm.) She was appointed to the Superior Court in 1989 by then-Gov. Rose Mofford, a Democrat. During her 11 years as an attorney in private practice, she co-authored a book that provides legal and clinical perspectives on violence in families. These are indicators of a Democrat.
Yet Bolton was appointed to the federal bench in 2000 by then-President Bill Clinton on the recommendation of Arizona Sen. Jon Kyl, obviously a notorious Republican of the highest and most repressive order. (Senate and federal District Court appointments traditions essentially give Senators from the location of the judicial seat the decision to pick the person for the President to nominate.) This would ordinarily mean she is a Republican, and if associated with Kyl, a Republican in spades.
Bolton was considered for the state Supreme Court in the early 90’s. She was listed as an Independent. Her current voter registration records have been sealed. Why? That is just weird. She was a Democrat, but now a Republican? Or what? And what on earth could possibly justify sealing her registration records? Who is she hiding from?
She struck from the Arizona ballot a land-preservation proposal advanced by the conservative Arizona Legislature. The measure was a bid to counter a similar proposal by environmentalists that remained on the ballot after her decision. She reasoned that the Legislature's proposal violated a state constitutional requirement that ballot measures cannot cover more than one subject.
She was called an activist judge (this is what Republicans call judges who decide cases against them regardless of whether the judge was correct on the law in making his or her ruling) She was reversed by the Republican Arizona Supreme Court, and the measure appeared on the ballot. It was defeated.
I still feel my initial, totally-without-the-facts thoughts should prove to be accurate. (Injunction denied, followed by appeal to Ninth Circuit, where injunction granted.) I am starting to get the feeling, however, that she might split the baby in half, giving something to each side. Don’t ask me how though, but judges can be very creative in that regard.
Or she just might surprise us and grant the injunction.
Reasonable minds could differ as to whether failing to grant an injunction would cause “irreparable harm” that is required to be found as the basis for an injunction. (I believe it would cause irreparable harm) That makes the decision even more political than normal. And as has been said, it is not easy to get a read on Bolton’s politics.
One thing is for sure. It is going to be an interesting two weeks. Hold on to your hats.