Gov. Jan Brewer is still weighing her options for how to appeal Monday’s ruling on Senate Bill 1070, but she indicated that she wants the 9th Circuit Court of Appeals to review the case again before she moves on to the U.S. Supreme Court.
Brewer said she’s leaning toward requesting an en banc review – a review by an 11-judge panel – from the appellate court after a three-judge panel upheld an injunction against key provisions of the landmark illegal immigration law. She said an en banc review would give a larger panel a chance to scrutinize “questionable” actions of the original panel, such as its consideration of the effect that SB 1070 would have on U.S. foreign policy and international relations.
“At the current time, I’m feeling that we ought to appeal to the 11-(judge) board. But that decision hasn’t been made,” Brewer told reporters on Tuesday.
The governor said she would decide either Tuesday night or Wednesday morning.
Attorney General Tom Horne, whose office is assisting with Arizona’s defense of the law, said both options have upsides and downsides. An en banc review would give the state an additional chance to make its case before appealing to the Supreme Court, he said – but the Supreme Court would be more likely to rule in Arizona’s favor.
“If you go en banc in the Ninth Circuit, you get two shots at the apple. You have a chance to persuade the 9th Circuit and then you get another chance to persuade the U.S. Supreme Court,” Horne said. “The other side of the coin is the United States Supreme Court is a more conservative organization. The 9th Circuit is known as liberal.”
Horne also said an en banc review would cause a “substantial delay” the final ruling on SB 1070. The Supreme Court could reject Arizona’s appeal, but Horne said he expects it to take the case.
“If we want to get a more rapid consideration, you might decide to go directly to the U.S. Supreme Court,” he said.