Lawyers in the lawsuit attempting to shut down all federal embryonic stem cell funding filed a highly unusual motion yesterday. If their motion is successful, it will effectively stack the court of appeals panel hearing this case with three far right judges who are more likely to side against scientific research than a randomly selected panel of their colleagues:
Cases in the U.S. Court of Appeals for the D.C. Circuit are randomly assigned to three-judge panels. There’s conflict screening to determine whether any one judge has a financial or other conflict of interest.
In the stem cell case, Judges Douglas Ginsburg, Janice Rogers Brown and Brett Kavanaugh picked up the dispute, heard oral argument in April and issued a ruling in June. The court reversed the dismissal of the claims and remanded the case for further proceedings in the U.S. District Court for the District of Columbia. DOJ is now appealing the issuance of a preliminary injunction that blocks funding for human embryonic stem cell research.
The Gibson, Dunn & Crutcher lawyers for the plaintiffs, Drs. James Sherley and Theresa Deisher, filed a motion about 1:30 a.m. today in the D.C. Circuit asking that the previous panel be assigned to hear the new appeal.
Early in this litigation, the trial judge determined the plaintiffs lack “standing” to bring this lawsuit — effectively saying that, because the plaintiffs haven’t actually been harmed in any way by the defendants, they are not allowed to sue them. The plaintiffs appealed that determination and an appeals panel of Judges Ginsburg, Brown and Kavanaugh decided that the plaintiffs have standing after all and sent the case back to the trial judge to consider the remaining issues.
Typically, when a case ping-pongs between a trial and an appeals court, the case is assigned to one appeals panel to determine standing and a different panel to decide future issues. Nevertheless, the plaintiffs’ motion claims that the court should not follow its normal practice “because the original panel is well-versed in the specific facts and law relating to the present appeal.” It’s tough to believe, however, that this is the real reason why the plaintiffs want to keep their old panel.
Ginsburg, Brown and Kavanaugh are among the most right-wing judges in the country. Brown once compared liberalism to “slavery” and Social Security to a “socialist revolution.” Ginsburg is a leading “tenther” who once called for America to return to a discredited era when child labor laws were considered unconstitutional. Kavanaugh cut his teeth working for Ken Starr’s Clinton-era witchhunt. When the court randomly assigned these three judges to hear the plaintiffs’ standing appeal, it was like the plaintiffs won the lottery. Their most recent motion is nothing less than an attempt to rig that lottery.
There also does not appear to be much legal support for the plaintiffs’ motion. The motion admits that, although the DC Circuit used to provide for “retention of the same panel that handled an earlier appeal in the same case . . . [,] that system is no longer in place as a formal matter.” Moreover, the motion is only able to find two examples from courts other than the DC Circuit which arguably support their request that their case be heard by the same panel — and one of those examples is nearly two decades old.
Nevertheless, the motion places the Justice Department in an awkward position. Were DOJ to oppose the motion, they would risk antagonizing Ginsburg, Brown and Kavanaugh even further by potentially implying that they are not well-suited to hear this case. Perhaps for that reason, DOJ informed the plaintiffs that they “take no position on this motion.”
If nothing else, this motion is a very clever attempt to shape the result of this litigation long before the case is even briefed. Should the motions succeed, opponents of stem cell research will have their dream panel.