I've been very critical of Judge Leon in the past few weeks for his interpretation
of the electioneering provisions of BCRA. Today, let me make two positive
comments about his judging. (1) He seems right that the court should not have
stayed those provisions on which these three ideologically judges unanimously
agreed were unconstitutional. If these judges can reach that kind of
consensus, then it seems at least a reasonable chance that the Supreme Court
would too. (2) Judge Leon could have scuttled the entire stay but didn't.
Under Federal Rule of Civil Procedure, Rule 62(c), when a three judge court
suspends application of an injunction pending appeal, "no such order shall
be made except (1) by such court sitting in open court or (2) by the assent
of all the judges of such court evidenced by their signatures to the order."
Judge Leon, who did not sign the memorandum opinion explaining the reasons
for granting the stay, nonetheless signed the order putting it in place.
Otherwise, there would have been no stay in place. (Thanks to the reader
who brought Rule 62(c) to my attention.)
--
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 South Albany Street
Los Angeles, CA 90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html