I won't comment much about the merits of the Ninth Circuit's decision this morning that invalidated (over a partial dissent) the core portions of Arizona's 2010 anti-immigration statutes as preempted by federal law. It's a topic about which much ink, virtual and otherwise, has already been spilled, and you'll see additional stories throughout the blogosphere and mainstream media. No reason to pile on.
I'll just add two tangential points.
First, the opinions here are a good example of the value of diversity with a big D. By that, I don't mean narrow, exclusively race-based diversity, but rather the value of a diversity of experiences and backgrounds and intellectual (including political) approaches, of which race is undeniably a part, but only a part. The panel drawn here -- randomly, I might add -- is very good for Diversity amongst middle-of-the-road Ninth Circuit judges. Writing the majority opinion, striking down the Arizona statute, is Judge Paez, a left-of-center judge of Mormon upbringing who's Mexican-American. Joining him -- and writing a separate concurrence-- is Judge Noonan, a profoundly Catholic and morally-centered judge who's a Reagan appointee and who taught at Boalt. Partially dissenting is Judge Bea, a Spanish-born, Cuban-raised emigrant who is conservative and was appointed by President Bush (43).
Three very different judges. Three very different perspectives. Three opinions that unambiguously reflect the attitudes, background and approaches of their authors.
Second, I'm not entirely certain where the case goes from here. Petition for rehearing will go nowhere, of course. Petition for rehearing en banc will undoubtedly be filed, and someone will request a vote. I'm not certain whether it prevails. The case is important enough, that's for sure. But I also think the majority of the court will agree with the panel's resolution. As well as happy with its composition. So I tend to think the en banc call will fail. With, undoubtedly, a dissent from the denial filed by someone who wants to tee it up for the Supremes.
At which point I don't know what happens. Probably they take the case. Too high profile not too. Which then results in a profoundly split opinion.
That's the weather forecast for this Arizona case. Hot. Red hot.
