While Washington was feting Connerly, a three-judge “motions panel” of the Ninth U.S. Circuit Court of Appeals was upholding his handiwork in California, restoring constitutional order to that state — and to the national debate over affirmative action. On Feb. 10, the panel unanimously overturned the outrageous ruling by district court judge Thelton Henderson that had blocked implementation of CCRI. A majority of California voters last November had approved the amendment to the state’s constitution, which prohibits race and gender discrimination in employment, education, and contracting. Judge Henderson, however, decided in December that CCRI was probably a violation of the U.S. Constitution’s 14th Amendment — and should not be enforced until such doubts could be formally addressed in court.
Last Monday, the Ninth Circuit panel swept aside Judge Henderson’s constitutional improvisation with unusual ferocity. California is not like ” Serbia or Algeria,” where “first they have the elections and then decide whether to honor them,” Judge Andrew Kleinfeld reminded an attorney for the American Civil Liberties Union, which opposes CCRI. The ACLU and Judge Henderson may adopt whatever fancy theory they like, Kleinfeld noted with obvious contempt, but the United States remains a government by the people, for the people — not one by “the people with the highest LSAT scores.”
And it gets better. Later the same day, Judge Kleinfeld and his two colleagues on the Ninth Circuit motions panel elected to retain near-term jurisdiction over the underlying constitutional litigation surrounding CCRI. The case will not now return to Judge Henderson’s court, as expected. Instead, the Ninth Circuit panel will itself — soon, probably by mid-March — make a formal determination whether CCRI may be constitutionally enforced by California’s state and local governments. If, as appears likely, they decide the answer is yes, Gov. Pete Wilson will be freed immediately to begin requesting that state appellate courts hold California’s myriad affrmative action programs unconstitutional.
Meanwhile, the Clinton administration, after promising to intervene in the case on the ACLU’s side, has decided merely to file pro forma “friend of the court” briefs. There’s still no telling how this whole mess will turn out in the end. But all the latest news is good.
CORRECTION-DATE: March 3, 1997
CORRECTION:
An item in our Feb. 24 SCRABOOK, “Good News for CCRI,” unwittingly made the good news sound better than it was. We suggested that one of Judge Thelton Henderson’s two edicts blocking California’s new anti-preferences law had been overturned. Not quite. An appeals panel declined to take that step and instead took what could prove to be a bigger one: assuming future jurisdiction of the entire case from Henderson — while criticizing his reasoning from the bench.
