This account by the Washington Post of the 9th Circuit hearing on the Arizona immigration law is revealing on a number of counts.
Judge John T. Noonan (whose own exacting questioning I experienced in law school some years back) didn’t think much of the Obama administration’s advocacy skills:
“I’ve read your brief, I’ve read the District Court opinion, I’ve heard your interchange with my two colleagues, and I don’t understand your argument,” Noonan told deputy solicitor general Edwin S. Kneedler. “We are dependent as a court on counsel being responsive. … You keep saying the problem is that a state officer is told to do something. That’s not a matter of preemption. … I would think the proper thing to do is to concede that this is a point where you don’t have an argument.”
That doesn’t mean the government doesn’t have other viable arguments in its attempt to overturn the Arizona law or that this issue is going to be settled by the 9th Circuit. (Certainly it’s headed for the Supreme Court.) But it does mean that the Obama Justice Department is doing a poor job of litigating.
Even more telling is this passage from the Post‘s report:
With Noonan, an appointee of President Ronald Reagan, so bluntly stating his views, legal experts said the government’s chances of having the injunction upheld may rest with the other two judges on Monday’s panel: Carlos T. Bea and Richard A. Paez.
Bea is also a Republican appointee and tends to vote with the court’s conservative wing, which could help Arizona’s chances. Paez is a Democratic appointee.
But Bea and Paez are Hispanic, and it is Hispanics who are most upset about the Arizona law.
What?! This is the wise Latino school of thought, the suggestion that these justices would vote their ethnicity rather than their conscience. The Post digs up a supposed scholar whom I’ve never heard of to opine: “‘Perhaps this is one area where Bea might not vote as a so-called conservative because he himself is an immigrant,’ said Arthur Hellman, a University of Pittsburgh law professor and an expert on the 9th Circuit.” Perhaps Hellman’s students should disregard the chazzerai they are being taught.