Nevada anti-gay group accuses Ninth Circuit of rigging the system

Timothy Kincaid

October 13th, 2014

In my professional life I work in a legal environment. And over time I have observed that one sure-fire way to guarantee that you will be treated harshly is to accuse a judge of impropriety. Even if a judge has made a clerical error, attorneys will go out of their way to not appear to be critical, following the first rule of litigation: ‘don’t piss off the judge’.

Which makes an appeal by Nevada’s Coalition for the Protection of Marriage particularly interesting. In asking that the Ninth Circuit reconsider it’s marriage ruling by an en mass hearing, they adopted a fascinating strategy: accuse the Ninth Circuit of rigging the results.

Further — en banc review is regrettably necessary to cure the appearance that the assignment of this case to this particular three-judge panel was not the result of a random or otherwise neutral selection process. Troubling questions arise because a careful statistical analysis reveals the high improbability of Judge Berzon and Judge Reinhardt being assigned to this case by a neutral selection process. The attached statistical analysis, Exhibit 3, explains that since January 1, 2010, Judge Berzon has been on the merits panel in five and Judge Reinhardt has been on the merits panel in four of the eleven Ninth Circuit cases involving the federal constitutional rights of gay men and lesbians (“Relevant Cases”), far more than any other judge and far more than can reasonably be accounted for by a neutral assignment process. Indeed, statistical analysis demonstrates that the improbability of such occurring randomly is not just significant but overwhelming. Thus, the odds are 441-to-1 against what we observe with the Relevant Case — the two most assigned judges receiving under a neutral assignment process five and four assignments respectively (and anything more extreme).

We bring the issue of bias in the selection process to the Circuit’s attention with respect and with a keen awareness that questioning the neutrality of the panel’s selection could hardly be more serious. But the sensitivity of raising uncomfortable questions for this Circuit must be balanced against the interests of ordinary Nevadans, who deserve a fair hearing before a novel interpretation of constitutional law deprives them of the right to control the meaning of marriage within their State. A hearing before an impartial tribunal is, after all, a central pillar of what our legal tradition means by due process of law, and the means of selecting the tribunal certainly implicates notions of impartiality. Measures have been put in place by this Court to assign judges through a neutral process. But in this case the appearance is unavoidable that those measures failed. En banc review is necessary to ensure that the appearance of bias is cured by a fresh hearing before a panel, the selection of which is unquestionably neutral.

Yeah… that’s not going to end well for them.


October 13th, 2014

I contend, therefore, that a panel made up entirely of judges who are married to persons of the opposite gender cannot be impartial. Their personal decisions to marry in this way indicate a bias inherently against same gender marriage.


October 13th, 2014

Given their unfamiliarity with scientific method, I would assume that the antis are equally unfamiliar with statistics.

John Appiah-Duffell

October 13th, 2014

“You know, the most amazing thing happened to me tonight… I saw a car with the license plate ARW 357. Can you imagine? Of all the millions of license plates in the state, what was the chance that I would see that particular one tonight? Amazing!”

-Richard Feynman

enough already

October 13th, 2014

I spent seven years and invested serious effort into learning rigorous fields of math and fail to see the connection here.
Damn, even took my degree magna cum laud.
So – some four year old child care to explain this to me?

Sir Andrew

October 13th, 2014

“Um, with all due respect to the Ninth Circuit, we believe you all are liars and cheats who hate God. Of course, we mean that in the nicest way possible. And if you don’t give us our way, we’re going to tell everyone that you don’t play fair and everyone should avoid you because you have cooties. So there!”

How does this group even have standing to file this appeal? Just because they hate gays and marriage equality doesn’t give them a place in the judicial part of this debate.


October 14th, 2014

I think the antis have gotten so used to flailing around looking for something — anything — to do to keep this alive that they’ve stopped thinking about what it is that they’re doing.


October 14th, 2014

“…deprives them of the right to control the meaning of marriage within their State.”

I’ve been wondering how straight people are harmed by marriage equality. Now I see. We are rudely depriving them of the right to define our marriages for us. How selfish of us.

Also, while this group may not have standing, they have set themselves up for a win-win scenario. Either they piss the judges off enough to give them a hearing anyway, or they piss them off enough to get a rude refusal. If the latter occurs, then they can take that back to their supporters as evidence of the Court’s unfairness. This could drive voters and shift an election or two, easily.


October 14th, 2014

Wow… This is a very biased statistical analysis.

First of all in the statistics presented to the court there are two ways of the statistics are calculated, the first gives a 1/60 and the second gives the cited 1/441. To calculate the 1/60 chance of this particular set being selected, judge’s schedules and calendars were taken into account. Very reasonable from a statistics viewpoint.

The second way of calculating it through out those assumptions and came up with the entirely predictable 1/441 which is 1/21*1/21 or the probability that any particular judge (say Berzon) is picked out of the 21 judges on the court (this is done twice since you are picking two judges).

So with regards to the first (and much more valid in my opinion) analysis of an improbability factor of 1 in 60, recall there are 21 judges on the panel. If we assume they would have complained regardless of which judge had been on 5 panels rather than just Benzon, we are reduced to a less than 1 in 3 chance of this happening.

Yeah, this statistical analysis is poorly done by a professor emeritus (semi retired) of statistics who no longer has to worry about his reputation. It is just sad.

Priya Lynn

October 14th, 2014

Thanks for that Randy.

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