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Updates: Friedland Confirmation Delayed, Smithkline Briefs Submitted

By William Peacock, Esq. on April 18, 2014 | Last updated on March 21, 2019

The parties to the case didn't request an en banc rehearing, but at least one judge did.

Smithkline Beecham was a landmark case for gay rights in the Ninth Circuit, even though the case started as a civil suit over HIV drug pricing. A juror was stricken after mentioning his partner during voir dire, presumably on the basis of his sexual orientation.

In January, the Ninth Circuit reversed local precedent and held the heightened scrutiny applied to same-sex discrimination (and by extension, Batson protections apply). It was a huge holding that has major implications for the ongoing Nevada same-sex marriage litigation appeal. The holding may not stand, however, if en banc review leads to a reversal.

Meanwhile, in a tangentially-related update the final nominee for the Ninth Circuit, Michelle Friedland, is all but confirmed for the bench, pending a final vote when the Senate returns on April 28. Based on the cloture vote, confirmation seems like a sure thing.

Briefs for Sua Sponte En Banc: Heightened Protections Apply

Though neither party initiated the en banc request, both responded to the Ninth Circuit's request for briefing.

Smithkline, the prevailing party, basically asked the court to leave the opinion as-is [PDF]. Abbot Laboratories supported en banc rehearing [PDF], but noted that it "does not request review of the panel's holding that heightened equal protection analysis applies to classifications based on sexual orientation," reports SCOTUSblog. Instead, Abbot Labs wants clarification on the privacy implications of asking jurors about their sexual identities, and a more in depth analysis of the factors necessary for a finding of discrimination.

The Other Olson Twin is (Nearly) Confirmed

She'll have to wait ten more days, but congratulations to soon-to-be Judge Michelle T. Friedland, a litigation partner in Munger, Tolles & Olson. She passed the cloture vote, 56-41, nabbing a few Republican votes along the way, reports the Metropolitan News-Enterprise. She also has the support of retired Justice Sandra Day O'Connor, whom she clerked for at the Supreme Court.

Her confirmation drew opposition due to her active role in gay rights litigation, specifically her work in fighting against Prop. 8 and in favor of banning gay conversion therapy.

She joins her MTO-twin John Owens, who was confirmed earlier this month. As we noted before, the two are both Stanford grads, former Supreme Court clerks, and finished at or near the top of their law school classes.

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