Some attorneys believe the Justice Department is intentionally dragging its feet in the Hawaii case because the 9th Circuit rotates the three-judge panels assigned to motions every month, with the next swap-out due Saturday. The 9th Circuit also announces the panels publicly, although not in advance. This month’s consists of two Obama-appointed judges — Morgan Christen and John Owens — along with George W. Bush appointee Milan Smith.
“Maybe they looked at the motions panel this month and felt it was maybe, 2-1 [against them] … at best and they didn’t see any percentage in that so they figured let’s see what’s up next month,” Tobias said.
“It does not bespeak a lot of confidence in the merits of their position if the strategy here really is waiting until the calendar flips over on Saturday,” University of Texas law professor Stephen Vladeck added. “It’s both a long shot and strange one.”
What is it the lawyers say? When the law is against you, argue the facts; when the facts are against you, argue the law. When both are against you, dither . . .