Who Will Be on the Ninth Circuit Panel in Perry?

The liberal blog Empty Wheel has an interesting post on which three Ninth Circuit judges might be on the appellate panel (edit: just to be clear, I mean the Ninth Circuit merits panel, not the motions panel that will hear the stay denial in the next few days):

There has not yet been a formal panel assigned to the appeal, but . . . there is a tradition and protocol generally followed in the 9th Circuit that may give us an idea of the panel that will be deciding this seminal case.

In the 9th Circuit, when a case goes up on appeal, and it has been there before to a given panel on any issue, that panel has the option of taking the full appeal when it is filed. Well, the Perry case has indeed already been up to the 9th previously on an interlocutory appeal of a discovery issue during the trial process, and that appeal was decided by a panel consisting of Judges Wardlaw, Fisher and Berzon. I think there is a very decent chance the standard 9th protocol is followed here and the full appeal is assigned to the previous panel of Wardlaw, Fisher and Berzon, which makes sense in terms of judicial economy since they are already up to speed on the parties and the case facts and posture.

So who are these judges, and what is the book on them? Well, that is where the fun comes in. They are all three Clinton appointees, and two of them, Marsha Berzon and Ray Fisher, clerked for Justice Brennan. Solid liberal credentials for sure, and Kim Wardlaw may actually be even more enlightened. If the appeal gets assigned to this panel, it would be in excellent hands and I would like very much the chances for upholding Judge Walker’s decision in favor of marriage equality for all.

Berzon/Fisher/Wardlaw would be an incredibly good panel for the anti-Prop. 8 (pro-SSM) side. At the same time, such a liberal panel draw would tend to make Supreme Court review of this case much more likely.