Big Lizards:Blog:Entry “Wild Prediction: 9th Circuit Panel Will Uphold Prop 8”

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August 17, 2010

Wild Prediction: 9th Circuit Panel Will Uphold Prop 8

Hatched by Dafydd

Sometimes, you just have to go with your gut feeling, no matter how strange and irrational it may seem.

What is a gut feeling? For one, it's a misnomer: Mine at least are not based on "feelings" (and don't originate from my intestines) but represent a sudden premonition that X is going to happen, even when I cannot consciously see a logical path from here to X. But that doesn't mean one doesn't exist; often, after a few days, I can start to see the rational basis for the prediction... meaning it wasn't a "gut feeling" but rather a rapid, subconscious calculation from available evidence drawing a rational, if obscure, conclusion.

That doesn't mean my subconscious calculations are always right! But I generally see that they're not irrational, either.

In this case, I've had the gut feeling -- I mean subconscious calculation that the three-judge panel of the Ninth Circus hearing the appeal of Judge "Dredd" Walker's decision striking down California Proposition 8 and finding a federal constitutional right to same-sex marriage, SSM, hitherto unknown to the mind of Man -- a panel comprising one very moderate Republican appointee of Ronald Reagan, Edward Leavy, and two ultra-liberal, Democratic Clinton appointees, Michael Hawkins and Sidney Runyan Thomas -- will not only find that Prop 8 defenders have standing... it will actually uphold Prop 8 by a 2-1 decision.

(This prediction naturally supercedes my previous prediction that the three-judge panel of the Ninth will uphold Judge Walker's decision.)

I have refrained from mentioning this to anyone until I could figure out what my subconscious was telling me; but I think I have it now. I don't for a moment believe that either of the two Clinton appointees opposes SSM; for that matter, it's entirely possible the Reagan appointee also supports it, in theory.

But support for SSM is not necessarily the "issue" for any of these judges:

Leavy, the Republican, may very well support SSM but nevertheless believe that voters have the right to vote the other way; that is, Leavy may very well take the same position as Patterico. If so, then he will vote to overturn Judge Dredd's decision and uphold Proposition 8.

And either of the two Democrats may decide that SSM isn't the real issue... the real issue is the November 6th, 2012 election. If either arrives at that conclusion, he would likely decide that forcing SSM down the throats of the American West, hence potentially forcing it upon all of America, will so alienate moderate and independent voters that Barack H. Obama is defeated for reelection, and the Democrats are all but wiped out in in 2012, threatening many much more important liberal projects on the economic, social, union, and military fronts. It could be 1980 all over again.

Note that the decision can't affect the election this November -- though Walker's earlier decision can, will, and already is -- because the appeal will not even be heard until December. But judges, especially federal judges with life tenure, are much more forward-looking than congressmen, especially representatives, for whom two years is a lifetime. I'm sure both Clinton appointees expect still to be on the bench after 2012 (Hawkins is 65, Thomas is 57).

Yes, I realize I'm suggesting that one of the super-liberal Clinton appointees, Hawkins or Thomas, might decide a momentus constitutional issue on the corrupt basis of looming partisan advantage. What's your point?

I'm making my prediction, and I'm sticking to it. I may be wrong; but at least I now recognize that I'm not acting from emotion, not a "gut feeling," but rather some deep undercurrent of rational thought.

Hatched by Dafydd on this day, August 17, 2010, at the time of 1:50 PM