Last year, U.S. District Judge Thelton Henderson issued a preliminary injunction against the anti-affirmative action Proposition 209, thus temporarily keeping California affirmative action programs in place until the Courts settled the proposition’s constitutionality. Now, a conservative 9th Circuit Court of Appeal panel’s refusal to hear full arguments before it decides whether or not to overturn the injunction has led many legal analysts to predict that the panel will overturn the injunction and effectively wipe-out California’s affirmative action programs. The conservative make up of the panel also has many legal analysts accusing the pro-209 forces of “judge shopping” to obtain a favorable ruling. Although many believe that the judges on the panel believe that 209 is constitutional, as a “motions panel” they can only overturn the injunction if believe that the District Judge “abused his discretion” in ordering the injunction. As Erwin Chemerinsky, a USC Law Professors explains, “[the judges would have to find] that Henderson doesn’t know the lawI think it would be extremely difficult to fund an abuse of discretion.”
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