Encore: should two judges who participated in California's same-sex marriage case (Judges Vaughn Walker and Stephen Reinhardt) have recused themselves?

Now that California's litigation over same-sex marriage has reached the SCOTUS, we are seeing more coverage of the recusal issues, which we covered several times earlier in various posts.

To recap: the trial judge in California's same-sex marriage case, Vaughn Walker, disclosed after the trial was over that he is a gay man in a long-term relationship. (Judge Walker's sexual orientation was a surprise to no one in our local legal community, but he had never made it a matter of public record until after trial.)

Then, on appeal, we learned that one of the three appellate judges assigned to the panel, Stephen Reinhardt, is married to Ramona Ripston, who was Executive Director of a local ACLU office that was involved, to some (hotly disputed) degree, in the planning stages of what became the litigation.

Over at National Review Online, Ed Whelan once again addresses the recual issues in three posts and he has filed an amicus brief on the issue. A round-up of Whelan's views is here. His arguments are substantial.

In the other corner  . . . .   Our own Steve Gillers, joined by the Hon. Judith Kaye (ret.), Charles Geyh, James Alfini, and Mark Harrison, has filed an amicus brief taking the opposite view of the issues. Their brief, which is likewise substantial, is here:

Download Recusal Amicus Gillers et al

I don't have a deeply informed view but can say that when Judge Reinhardt declared his reasons for not recusing himself, he spent a lot of time thrashing a strawman argument (i.e., that the argument for his recusal rests upon the notion that the personal views of a judge's spouse are imputed to the judge). I've yet to see anyone argue that simplistically. It's fair to base a recusal motion upon his spouse's involvement (vel non) in the litigation itself.

The amicus brief also spends time rejecting the strawman (see pages 30-32) before briefly turning to the more substantial argument (i.e., that it was the spouse's participation in the matter that could be problematic) at pages 32-35.

Comments

[Thalia]

If two of the conservative justices, who as far as I can tell do not believe in conflicts on principle, address this reclusal I shall be most amused.

[John Steele]

Thalia, thanks. To some degree, Judge Reinhardt and Justice Thomas are in similar positions, given that the professional activities of their spouses have been cited as reasons for recusal.

[Monroe Freedman]

I agree with regard to Walker.

Did the brief deal with a concern about Reinhardt that I raised in an earlier post? That is, that Ramona Ripston was involved in the case below, and that she had daily opportunities for ex parte communications with her husband? The question isn't whether they did in fact discuss the case; rather, a member of the public might question whether such communications took place.

I don't know the extent of Ripston's role in the lower court, but have read, for example, that her name was on a brief - a matter that is subject to verification. Does anyone know what in fact her involvement was?

[Monroe Freedman]

Correction: a member of the public might reasonably question whether such discussions took place.

[Richard Painter]

No recusal for Judge Walker for reasons I stated in previous posts.

Judge Reinhardt is debatable depending upon the degree of his wife's "participation". If she were a party or counsel in the case, he would have to recuse, but she was not. Other participation by her falls in the gray area.

And what happens if five Supreme Court justices all belonging to one religious denomination that lobbied for Prop 8, and for similar amendments around the Country, were to vote to uphold it? Still no violation of the recusal statute in my view, but it won't look good, particularly to the rest of us who belong to religious denominations that take the opposite view and celebrate marriages that are declared legally invalid under this amendment. Still, there can be no religious test for holding or exercising the duties of public office, and the recusal statute cannot prevent this from happening. It is the Constitution that should prevent such a holding on the merits for the reasons that I and 131 other Republicans stated in our amicus brief filed with the Court. This case will turn on the merits, not judicial recusal rules.

[Monroe Freedman]

Richard, You say that she was not a party or counsel at the appellate level But you haven't answered the question of whether she was named as counsel on a brief below, and whether her daily and nightly opportunities for ex parte appellate discussions wouldn't be grounds for Reinhardt's recusal.

And since the issue is recusal, then 28 USC 455(a) does go to the merits. See Liljeberg, et al. And, as you recognize, the Due Process clause of the Constitution also goes to the merits. See, e.g., Tumey, Ward, Murchison, et al.

My question was, did the amicus brief deal with the issue of Ripston's participation in a trial brief? For example, by pointing out that, as a matter of fact, she had nothing to do with the litigation at the trial level? Or, if she did participate below, did the amicus brief explain why 455(a) and Due Process don't apply to her opportunities for ex parte appellate communications about the issue she briefed below?

[John Steele]

Monroe & Richard,

My sense, as a litigator, is that the factual record as to what Ms. Ripston did or did not do is frustratingly vague. Ed Whelen struggles to whip a few facts into a great meringue while the supporters of Judge Reinhardt use shorthands and euphemisms rather than wrestle with the specific facts. Neither side offers me a satisfying account of what she did.

[Dan Abrams]

I have posted my views here before and will not repeat them. Suffice to say I hope the recusal issues are addressed by the Court. They are far more interesting to me than the substantive issues.

[Stephen Gillers]

Ripston's role is in the amicus brief. She is not a lawyer. She headed the Souther California CLU. The CLU did not appear in the circuit in any capacity. It joined an amicus brief in the district court and unsuccessfully moved to intervene, along with many other groups. Ripston was not involved in the decision to file the amicus brief. Our Supreme Court brief addresses authority on the consequences of these facts. Ripston is publicly identified as a supporter of gay marriage.