I wrote a piece available here on Prop 8's appeal and the AG race. I suggest that we should fear a Cooley win, as that would reduce the likelihood of SCOTUS being able to dismiss the case on standing grounds. (Note - the piece talks about 9th Cir. judges who "will rule on the appeal." It should read "the judges who will *probably* rule" on the appeal, since the name of panel members are suspected, but not officially named).
David Cruz wrote an extremely thorough response explaining why my fear that Cooley will be given standing, were he to be elected, is misplaced. I actually agree completely with David's analysis. However, to play devil's advocate - partially because I'm a lawyer (officially passed the bar - woohoo), and partially because I have a tendency towards paranoia that would make a Tea Partier proud - I now respond.
David presents a balanced view of the matter, pointing us to 28 USC 2403(b) (which I would never have found with my own feeble Fed Courts knowledge). The statute (a) allows a state to intervene when the constitutionality of a statute is in question and the "State . . . or employee thereof is not a party" (b) "permit[s] the State to intervene for presentation of evidence . . . and for argument on the question of constitutionality." and (c) the state has "all the rights of a party and [is] subject to all liabilities of a party as to court costs to the extent necessary for a proper presentation of the facts and law relating to the question of constitutionality."
To summarize David's main points (he has other, excellent ones), he points to (a), to make the point that the statute does not contemplate intervention when the state voluntarily chose not to appeal, and to (b) and (c) to note that the state is not actually a party under this statute, but rather intervenes with limited rights. He also notes that it is unclear who would get the final call on intervening - Gov. Jerry Brown or A.G. Cooley - and that there is a question of the interaction of the statute with the Federal Rules of Appellate procedure that would not allow this intervention.
Presuming that the statute trumps the Federal Rule of App. Procedure (an issue about which I have absolutely no knowledge), I still fear that the statute is subject to a reading that would allow the AG to intervene against Prop. 8. Three questions arise: should we read the statute to allow standing? Would it be constitutional in that case? And who gets to intervene - the Governor or the AG?
First, I look to the statute. The statute under one reading, may actually purport to *bestow* standing. I am troubled by the language "intervene" in 2403(b). That word seems to make the issue more ambiguous: surely the statute could have avoided the word, just saying a state could "present evidence . . . [and] argument." Instead, it uses the term of art, "intervene." Moreover, given that the statute says that the state has "all the rights of a party" one wonders what Congress is getting at. Surely, the rights are not to be limited - the unlimited nature of the "rights" should be contrasted with the discussion of "liabilities" in the very next breath, which are *explicitly* limited. Thus, if the state has all the rights of a party, one may say that Congress wants a court to presume that the state IS a party when deciding the question of standing (Note that the "too the extent necessary" language which concludes the sentence is not set off by a comma and therefore applies only to the "liabilities" language, as Justice Scalia would remind us). Thus, the "rights" of the state party, once it is before the court, may now include the right to judgment and redress if the concrete/particularized, causation, and redressability requirements of standing are met.
Beyond the language, David looks to the purpose of the statute to glean its meaning. Yet, this is also not clear from the text. Fundamentally, the statute appears directed at the fact that defending the constitutionality of a statute is an important state interest. How large is that interest? Is it large enough to allow a state to reenter a fray after dropping out? Without reviewing the history, I don't we know.
If the statute does give standing, we face the constitutional issue - can Congress give states this right to jump back into a case with standing - well, again, who knows! Defenders of Wildlife of course has an unsatisfying footnote that apparently recognizes *some* power in Congress to create constitutional standing. Furthermore, this could always be the revenge of Massachusetts v. EPA. I can imagine the opinion of certain unnamed Justices now. "States are special? Well, we'll show you just how special they are!" (Bennett v. Spear for example, shows that some standing "hawks" on the Court may be malleable on standing principles depending on the question to be reached.).
Finally, as to whether the AG or the Governor gets to intervene. I think that that may be an issue of state law. But insofar as the federal statute seems to have anything to say about it, the state AG is notified, and a quick glance at the Westlaw commentary on the statute seems to show that courts give deadlines specifically to the state AG.
There are numerous presumptions above that show my limited knowledge - and as I said, my entire argument is based on a statute that I knew nothing about until David referred us to it. But I'm glad to have learned what I have so far - and hope to learn some more!