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Conservative Court Handling Elian

April 14, 2000

WASHINGTON (AP) _ The federal appeals court handling the Elian Gonzalez case is viewed as somewhat conservative, but with a mix of liberal and conservative judges.

The 11th U.S. Circuit Court of Appeals is ``a little to the right of center,″ said Bruce Rogow, a law professor at Nova Southeastern University in Fort Lauderdale, Fla., and a frequent litigator before the appeals court.

``They’re not timid,″ Rogow said, but added, ``they are not ideologues... They are very respectful of federal power.″

The 11th Circuit court plans to hear arguments May 11 on an appeal by Elian’s Miami relatives of a federal judge’s ruling last month that upheld Attorney General Janet Reno’s decision to return the 6-year-old shipwreck survivor to his father.

Elian’s great-uncle, Lazaro Gonzalez, wants to seek asylum on Elian’s behalf and argues in a separate court proceeding that returning him to Cuba would violate the United Nations human rights charter.

On Thursday, appeals court Judge J.L. Edmondson issued an emergency order barring Elian from being returned to Cuba until the 11th Circuit case is resolved. The federal government has asked the court to lift that order, and a three-judge panel is expected to decide soon whether it will do so.

The 11th Circuit court _ covering Alabama, Georgia and Florida _ was created in 1980 when those three states were split off from the 5th Circuit court, which now includes Texas, Louisiana and Mississippi.

The old six-state 5th Circuit court was known in previous decades for issuing powerful civil rights rulings and for protecting individual rights.

Since its creation, the 11th Circuit court has moved in a more conservative direction, said Randall Berg, executive director of the Florida Justice Institute.

Last month, the court voted 10-2 to allow student-led prayer at a public high school graduation ceremony.

The Supreme Court upheld an 11th Circuit court ruling in 1996 in a landmark ruling that gave new life to the Constitution’s 11th Amendment, which protects states from being sued against their will.

Last year, the justices reversed the appeals court in ruling that educators can be sued under a federal anti-bias law for failing to stop student-on-student sexual harassment. The 11th Circuit court had said the federal law never applied to such harassment.

Rogow said much depends on which three-judge panel is chosen to hear a case, but that overall, ``they are a court that most criminal defense lawyers view as pro-government.″

In hearing the Gonzalez case, he said the court likely would ``take a quizzical view toward all of this madness and wonder why it’s all gotten so far out of hand.″


On the Net: 11th Circuit court: http://www.law.emory.edu/11circuit/

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