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An interim update on the stem cell litigation

Since my initial post on Judge Lamberth’s decision and injunction, there has been a little news, with more to come next week.

In early September, the government finally asked Judge Lamberth to stay his injunction pending appeal. Not surprisingly, on September 7, he declined. The next day, the government asked the DC Circuit for a stay. On the 9th, the court issued an administrative stay, preventing the injunction from going into effect until it had time to decide, after briefing and argument, whether to grant the stay of the injunction until it decides the government’s appeal. The plaintiffs were told to file their opposition to the government’s motion for a stay by September 14; the government was told to reply by September 20. Both of those things have happened.

In the meantime, the plaintiffs asked the DC Circuit to assign this appeal to the same panel of judges that had heard (and granted) their appeal from Judge Lamberth’s initial decision, dismissing their case for lack of standing – Judges Douglas Ginsburg, Janice Rogers Brown, and Brett M. Kavanagh. The court declined this request, presumably deciding that the issue of standing was not so closely related to the merits of the injunction as to justify having the same panel hear it.

The BLT – the Blog of the Legal Times – reported on September 16 that the Court announced that oral argument on the motion to stay will be heard at 10:00 a.m. on Monday, September 27. This argument was originally set for Friday, September 24, but the plaintiffs asked for the delay because their lead counsel would not return from long-planned travel to Eastern Europe until September 23. (I’ve seen no word on whether the trip was business or pleasure.)

The three judges hearing the motion to stay are Judges Janice Rogers, Thomas Griffith, and (again) Brett Kavanagh. Personally, I believe that the judges’ political views don’t have much influence in most cases and I expect that to be true in this case. The government has made, I believe, a convincing argument for this stay – it, not the plaintiffs, is likely to prevail on the merits and it, not the plaintiffs, will suffer irreparable injury if the injunction goes into force. I think any panel of three judges from the DC Circuit is highly likely to stay this injunction – though predicting judicial decisions is always both uncertain and dangerous.

For those of you who are interested in judicial predispositions, though, this would probably be seen as a slightly better panel for the government than the panel that heard the standing appeal. Judge Rogers replaces Judge Ginsburg as the senior judge on the panel. She was appointed by President Clinton and is viewed as fairly liberal; he was appointed by President Reagan and is viewed as fairly conservative (though in a more libertarian than social conservative way).

Judge Rogers, a conservative appointed by the second President Bush, is replaced by Judge Griffith, “a conservative appointed by the second President Bush.” Judge Griffith did spend the five years before his appointment as general counsel at BYU, which could make him more sensitive to research issues. BYU has no medical school, but it does have several PhD programs in life sciences. And the LDS church seems to have no strong doctrinal position against embryonic stem cell research; at least, Senator Orrin Hatch backed this research.

And Judge Kavanagh is replaced by . . . Judge Kavanagh.

As I said, personally I don’t think the panel will matter much, but, for those who like tea leaves, those are the only ones I see.

The court might or might not announce its decision on the stay at the hearing next Monday, but, either way, we should hear soon.

One Response to “An interim update on the stem cell litigation”

  1. [...] stayed the injunction, allowing NIH to continue to fund the research while the appeal was pending. Stay, Post 1; Stay, Post 2. On December 6, 2010, the court heard oral argument and on April 29, 2011, the [...]

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