More on the call for Judge Reinhardt to step down from the Prop 8 appeal

Ed Whelan throws down a challenge: "Just wondering: Is there any legal ethics specialist who is willing to opine that Judge Reinhardt is not obligated to disqualify himself from the Prop 8 appeal?"  As for me, I haven't had the time to analyze this one closely enough to comment.

UPDATE: The motion is here.  I will speculate that the research had all been assembled, just in case Reinhardt was assigned to the panel -- that's the kind of lawyering you can do if you have enough funds!  Between the news accounts and the brief, it's appearing more and more likely that the ACLU did file amicus briefs in the very case on appeal.  The ACLU's general involvement in favor of same sex marriage may not have been enough to justify recusal, but actual participation in this matter could make a difference. 

UPDATE 2: Wow that was fast.  Howard Bashman is reporting that the recusal motion has been denied.  Ruling here.  The ruling is an ipse dixit place holder, with a longer explanation to follow in a memorandum to be filed at a later date.  The merits aside for now, the language is a little odd, in that Judge Reinhardt simply tells us "I am certain that "a reasonable person with knowledge of all the facts would [not] conclude that [my] impartiality might reasonably be questioned."  (cites omitted)  He may eventually be right, but please "show me, don't tell me."

UPDATE 3: AP is now reporting that the party bringing the challenge will not pursue it -- meaning, it seems, that the recusal issue is dead unless Judge Reinhardt bounces himself sua sponte. Poof!  

Comments

[Monroe Freedman]

It would be easier to have an opinion if one knew the facts. So far, I haven't seen them laid out, fully and with certitude.

[Brad Wendel]

I don't know if I count as a "liberal" legal ethicist -- I'm more of a center-left Clinton/Gore-type New Democrat, certainly not a radical lefty -- but I suppose from the perspective of the National Review I qualify. I don't see how Reinhardt is not required to disqualify himself. (John's and Monroe's caution is well-taken -- we may not know all of the facts -- but just for kicks let's proceed on the basis of what is alleged, like we're analyzing a Rule 12(b)(6) motion.) Some of the comments on the WSJ blog post talk about the appearance of impropriety standard, but you don't need that. The federal recusal statute, 28 USC s. 455(b)(5)(i) provides that disqualification is required where the judge's spouse is an officer, director, or trustee of a party. See also CJC Rule 2.11(A)(2)(1). Judge Reinhardt's wife is the executive director of the So. Cal. ACLU, a party to the proceeding. Depending on what she did at the meetings at which she was present, she may have also "act[ed] as a lawyer in the proceeding." 28 USC s. 455(b)(5)(ii); CJC Rule 2.11(A)(2)(b). There's no need to reach the appearance of impropriety standard, and also no comparison with the Ginny Thomas case where, I believe, her involvement in the matters in question is less direct.

By the way, speaking as a "liberal" legalethicist, I think the focus on Ginny Thomas is misguided. Given Justice Thomas's very well established, and extremely robust conservative views, do we really think he is more likely to vote, let's say, to find PPACA (the health care reform statute) unconstitutional because of his wife's political activities? The spousal relationship by itself doesn't imply shared ideological commitments -- think about James Carville and Mary Matalin. In the case of the Thomases, her beliefs tend to reinforce our preexisting view that Thomas is a hard-line conservative, but we have plenty of other evidence of that; the political activities of his wife aren't really the point.

In terms of strategy, I would echo a comment on the WSJ blog -- I think citing Orin Kerr -- which is that having Reinhardt on the 9th Cir. panel would be like waving a red flag in front of the bull that is the full court and then the Supreme Court. A Reinhardt-less panel might issue a decision that is less likely to go en banc and less likely to be reversed by the Supreme Court.

[Monroe Freedma n]

The observation is irrelevant: "do we really think [Thomas] is more likely to vote, let's say, to find PPACA (the health care reform statute) unconstitutional because of his wife's political activities?"

Under the Due Process Clause of the Constitution, the judge is forbidden to sit if there is a "*possible temptation* to *the average judge* ... which *might* lead him not to hold the balance nice, clear, and true." Tumey v. Ohio (unanimous opinion written by C.J. Taft.

The Court in Tumey also required recusal unless the judge's interest is "so remote, trifling, and insignificant" as to be de minimis.

I don't think the political views of the spouse require recusal if that is all that is involved. But my understanding is that Thomas' wife received substantial sums from litigants before the Court which, in part, contributed to the Thomas family's income -- more than the $12 at issue in Tumey.

[Max Kennerly]

As far as I've seen, ACLU isn't a party to the proceedings, and isn't even counsel to a party, they're counsel to an amicus.

Did any of these same folks object to Scalia's participation when Scalia's son was part of the Bush team in Bush v. Gore?

No?

Gosh, I wonder why they're so concerned now but weren't then.

[Marc DeGirolami]

John and all,

In case it might be of interest, I've posted some thoughts about this latest recusal issue in the context of the suggestion that other judges ought to review the recusal decisions of their colleagues, here:

http://mirrorofjustice.blogs.com/mirrorofjustice/2010/12/recusal-as-politico-religious-cudgel-more-thoughts-on-a-bad-idea.html#more

[Patrick S. O'Donnell]

Brad,

As an aside to your comment, it’s of course quite possible that you could be BOTH “a center-left Clinton/Gore-type New Democrat” and “a radical lefty.”

Let’s say, for example, or in the best of all possible worlds, you’re a Marxist or “radical lefty” of some sort (Social Democrat, democratic socialist, philosophical anarchist, and so on) when it comes to an analysis of capitalism, including belief in the (theoretical and historical—the latter in a non-determinist sense) possibility of non-capitalist alternative socio-economic structures, portents of which were presaged in the works of the utopian socialists castigated by Marx for their political naïveté (among other things) as well as, later, among philosophically inclined anarchists (or ‘anarcho-communists’) like Kropotkin and Gandhi. This orientation need not rule out the possibility that, on election day, you vote as ”a center-left Clinton/Gore/[Obama]-type New Democrat,” especially given the constraints of electoral politics in this country. Furthermore, you may be at the same time a Liberal in the classical sense (from Hobbes, Locke and J.S. Mill through Rawls) when it comes to your understanding of and fondness for "our" constitutionally-based legal system and your appreciation of the myriad virtues of the institutions and processes of democratic representation of Liberal provenance.

The reasons for this are in accord with an observation made by the late Ninian Smart that most of us, “when it comes to the crunch,” don’t have systematic or even robustly consistent ideological worldviews, possessing rather an amalgam of belief and values: religious, moral, political, etc., “which we may publicly characterize in a certain way,” for instance, as Christian, Liberal, Radical, Leftist, and so forth, despite the fact that such rhetorical and political shorthand, in the end, fails to capture the inconsistent if not motley (at least as assessed by some criteria) character of these values and beliefs. As Smart wrote, our values and beliefs are composed “more like a collage than a Canaletto. They do not even have consistency of perspective.” I’m reminded here of the 14th Dalai Lama, Tenzin Gyatso, who spoke of himself as being “half-Marxist, half-Buddhist.”

This selfsame point was more or less made by the New Left veteran (among the founders of the Students for a Democratic Society) and sociologist Richard (Dick) Flacks in his book, Making History: The Radical Tradition in American Life (1988):

“Since there is not national organization around any more that can set doctrinal boundaries for the left, there is today room for expressing and acting upon the full range of issues and perspective that actually constitute the radical, democratic, critical tradition. One can more easily be a Marxist in the morning, a pacifist in the afternoon, an environmentalist at dinner, and a feminist in the evening, while going to church on Sunday and voting Democrat on election day.”

[Patrick S. O'Donnell]

Erratum (Flacks quote): "Since there is no national organization...."

[Monroe Freedman]

According to Law.com, the motion was based on allegations that the judge's wife's is a longtime advocate of gay rights, that she conferred with the plaintiffs about the suit before it was filed, and that her office, the ACLU, filed an amicus brief in the trial court in the same case.

In his short memo denying the motion, the judge did not deny any of the allegations. He simply said that he could be impartial.

First, his saying that does not meet the statutory requirement.

Second, his wife's record of advocacy is not in itself enough.

However, if she did confer with the plaintiffs in planning the suit, and if she is still Director of a an organization that filed an amicus in the case, I believe that a reasonable person might question the judge's impartiality - not *would* question, but *might* question, and not might *decide*, but might *question*. A principal reason for my conclusion is that a person who has been involved in this very litigation is in a position to have frequent ex parte communications.with the judge.

[Monroe Freedman]

Perhaps I should add that I qualify as a liberal -- a New Deal, Fair Deal, and Obama-We-Can-Do-It (but not an Obama-Pragmatic-Moderate) kind of Liberal. Also, I have criticized Breyer and Ginsburg as well as Rehnquist, Scalia and Thomas, and have defended Alex Kozinski, John Noonan, and Thomas Griffith on ethical grounds.