[Guest post by Aaron Worthing; if you have tips, please send them here.]
Yesterday, I told you about how Judge Reinhardt headlined the panel of three justices who will be hearing the Proposition 8 appeal. Well, today we learn from Ed Whelan that Reinhardt probably has to disqualify himself. I suggest you read both posts in full (here and here) but here is the bottom line:
Canon 3.C of the Code of Conduct for United States Judges provides a non-exhaustive list of circumstances in which a judge must disqualify himself on the ground that his “impartiality might reasonably be questioned.” Subpart (1)(d) states that those circumstances “includ[e] but [are] not limited to instances in which … the judge’s spouse … is (i) a party to the proceeding, or an officer, director, or trustee of a party; or (ii) acting as a lawyer in the proceeding.”
In this case, Ripston was an officer of an entity that acted as a lawyer in the proceeding—a trivial variation on the examples given. Judge Reinhardt is therefore clearly required to disqualify himself from the Prop 8 appeal.
So, Reinhardt must step aside. But then again, Judge Walker should have stepped aside, too, and he didn’t. So who knows if Reinhardt will obey that rule.
But at the same time Orin Kerr echoes my point that a “Reinhardt” win might be a pyrrhic victory:
At the same time, I would think [Reinhardt’s involvement] is bad news for opponents of Prop 8 in the long term. It goes without saying that Reinhardt will vote the liberal way, and he’ll likely have Hawkins with him. But the word “Reinhardt” is radioactive at 1 First Street. Reinhardt writes like there is no Supreme Court, and as a result his opinions have a remarkable ability to annoy the Justices. In return, the Supreme Court loves to reverse Reinhardt. They love to reverse opinions he signs, and they love to reverse opinions he participates in. So the fact that he’ll likely be involved in the panel decision probably hurts opponents of Prop 8 in the long run.
But the law is the law. I may suspect we will trade Reinhardt for another liberal who will equally disregard the law and strike down this constitutional amendment, only this liberal’s reputation won’t be as radioactive. But the judges have to at least fake being impartial, and that means Reinhardt must step aside.
Update: Orin Kerr weighs in on the disqualification issue, writing:
I’ll leave it to the legal ethics experts to weigh in on this question, as I don’t know what to make of it. My gut reaction is that no reasonable person familar with Reinhardt’s way of deciding cases could believe that his wife’s involvement would make any possible difference in how he approached the case. But I don’t know if the recusal standard is supposed to use a more idealized standard.
I am sorry, but this misses the point. I mean the argument seems to be “he is so biased by his liberal activism that he couldn’t possibly be biased by his wife’s involvement”—or at least that is how I understand his somewhat cryptic remarks. But in that case, you are easily meeting the Code of Judicial Conduct statement that one should step aside when one’s “impartiality might reasonably be questioned.” It may be the sad state of our law that we know how Reinhardt is going to rule before he reads a single word of the case, but that cannot be cited as an excuse for disregarding any other violations of the rules of judicial conduct.
I mean suppose it was learned tomorrow that anti-Proposition 8 forces actually bribed Reinhardt to rule in their favor. I mean, I want to be clear that they have never shown any tendency to do anything so dishonorable, but suppose they did? Then by Kerr’s logic, since the bribe isn’t likely to change Reinhardt’s decision, there is no reason to step aside. But if there ever was a case where a judge had to step aside, it is when they are bribed.
I mean he is right to say it is a bit of a mockery to talk about these technicalities, while the elephant in the ethical room is the fact we know Reinhardt will rule in favor of gay marriage not because any plausible interpretation of the Equal Protection Clause would support that outcome, but because that is how Reinhardt wants things to happen. Yes, that is the more egregious bias that should lead him to step aside on his own accord (and probably just generally resign from being a judge barring significant reform). But that isn’t going t happen anytime soon, and the question is whether he should throw out the rulebook altogether.
And there is an important difference between Reinhardt’s activist bias, and the bias arising from issues such as his wife’s involvement in the case. The difference is the evidence. The fact is that Reinhardt doesn’t write opinions that say, “I know the Supreme Court has said X, and the Constitution also says X, but I don’t like that outcome so I will rule that Y is the rule.” He pretends to be following the law and the constitution even as wiser minds know that it is a thin farce unlikely to fool anyone, but himself. But he fakes it just enough that you can’t be sure he is not consciously disregarding it. By comparison facts such as his wife’s involvement in the case are not in dispute.
(I will also note that bias is traditionally considered a two-way street. That is, if a judge has connections likely to bias him or her toward one side, both sides have equal standing to seek disqualification. This is because the bias could easily cut both ways. Let me give you a concrete example. Imagine in a case involving a murder, that the judge was related to the victim. Well, then the defendant and the prosecutor would have cause to challenge the judge’s impartiality. The defendant obviously would be afraid that the judge would be unfair to him out of a belief that he killed the judge’s relative. But the prosecutor would also have cause for concern that the judge, being aware of this obvious concern for bias against the defendant, might go the other way and bend over backwards to be kind to the defendant, to show how “unbiased” he was—and thus treat the prosecution unfairly. I think this point has limited application to this situation, but I thought I would share this theory regardless.)
[Posted and authored by Aaron Worthing.]