Court watchers are saying that the response by 9th circuit Federal Judge John T. Noonan to the DoJ brief on the suit against the AZ immigration law might have doomed it before the case has been heard:
Judge John T. Noonan Jr. grilled administration lawyers at a hearing before the U.S. Court of Appeals for the 9th Circuit. He took aim at the core of the Justice Department's argument: that the Arizona statute is "preempted" by federal law and is especially troublesome because it requires mandatory immigration status checks in certain circumstances.
"I've read your brief, I've read the District Court opinion, I've heard your interchange with my two colleagues, and I don't understand your argument," Noonan told deputy solicitor general Edwin S. Kneedler. "We are dependent as a court on counsel being responsive. . . . You keep saying the problem is that a state officer is told to do something. That's not a matter of preemption. . . . I would think the proper thing to do is to concede that this is a point where you don't have an argument."
"With respect, I do believe we have an argument," said Kneedler, who asserts that the Arizona law is unconstitutional and threatens civil liberties by subjecting lawful immigrants to "interrogation and police surveillance.''
Translation: They don't have a case based on what was in their brief. There are other avenues they may pursue - including a challenge to the law based on the 14th amendment - but Noonan's remarks leaves the case in limbo at the moment.