Patterico's Pontifications

11/30/2010

Happenings in Reinhardtland

Filed under: General — Aaron Worthing @ 10:32 am

[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.]

28 Responses to “Happenings in Reinhardtland”

  1. hahahahahahaha…………..

    oh.

    wait……

    were you serious? “…at least fake being impartial…”?

    puhleaze: that stopped happening years ago.

    redc1c4 (fb8750)

  2. here’s semi-relevant question on the issue:

    as i understand it, lawyers who do not provide adequate counsel to their clients can be censured by the bar, and, possibly the courts. why is there not similar recourse, besides the ballot box, for the AG and their subordinates failing to provide competent counsel to the people of the state they are supposed to be representing?

    redc1c4 (fb8750)

  3. The argument for Reinhardt to step aside is on much more solid and serious ground than the bogus (and laughable) Walker argument.

    One wonders if Clarence Thomas will do the same thing when/if there is a case that Ginny’s group is politically involved in.

    Kman (d30fc3)

  4. red

    I believe that would rightfully be cause for impeachment and removal of the AG in many states. but the political question is summoning the votes needed to obtain that result.

    At the same time, for me the solution should be to grant the proponents standing as proponents. i mean if you force the AG to do it against his or her will, how good can you expect them to do. the law should be ideally defended by people who actually care about it.

    Aaron Worthing (b1db52)

  5. kman

    re: walker

    sure, if i told you that you would be deciding whether you could marry anyone you were likely to fall in love with, i am sure you could be impartial, right?

    indeed, for all we know, Walker promised his lover that he would marry him the moment gay marriage was legal again.

    Good to see you stand against even the bare minimum of due process–an unbiased judge.

    As for thomas, yes, i think he should step aside when they do.

    Aaron Worthing (e7d72e)

  6. This is the sort of post I come to this site for, just sayin.

    gary gulrud (790d43)

  7. I question any conclusion that a gay judge is disqualified from deciding a gay marriage case. Are Christian judges also disqualified? If opponents of gay marriage are correct that gay marriage threatens marriage as an institution, then don’t all single straight people have an interest in deciding the case against gay marriage? Or even married straight people whose marriages are on the rocks?

    Sarah (c7f910)

  8. Aaron – my point in the other thread was that the political question was resolved with the election of Kamala Harris. The voters of this state don’t care enough about defending Prop. 8 in court to refuse to elect a candidate who promises to do that.

    the law should be ideally defended by people who actually care about it.

    Right. Which is, IMO, why an AG who cannot in good conscience defend a law he believes is unconstitutional has an obligation to hire outside counsel to do it – at least at the trial court level.

    aphrael (fe2ce4)

  9. Sarah

    Yes, not being able to marry anyone you ever are likely to fall in love with is the same as being concerned about a degradation of the institution.

    Aph

    hiring outside counsel is a very good idea, as a solution.

    Aaron Worthing (e7d72e)

  10. I question any conclusion that a gay judge is disqualified from deciding a gay marriage case. Are Christian judges also disqualified?

    A failed analogy. Christian judges would not have had their own rights altered by the case.

    SPQR (26be8b)

  11. Being “ideologically” biased is way too subjective and indeterminate to be validly used as a basis for recusal/disqualification. Also, I doubt whether anyone in the world is not “ideologically” biased in one direction or the other-it just flat doesn’t bother me. But an actual concrete conflict of interest, or relationship, these can be proved and give the smell of a “rigged” system. So, even if his wife wouldn’t change Reinhardt’s vote, the judge with a wife who is a party or has a concrete interest in the decision has to go, to uphold the integrity of the system.

    It does sound a bit cynical, but there’s no doubt in my mind that public perception of the integrity of the system plays a HUGE role in the common person’s desire for interaction with government, and is the majority of that “consent of the governed” people are always talking about.

    Damn am I wordy.

    Linus (cc24db)

  12. Linus, Reinhardt has a history of dancing on the canons with respect to cases that his wife’s org is involved in.

    SPQR (26be8b)

  13. I question any conclusion that a gay judge is disqualified from deciding a gay marriage case. Are Christian judges also disqualified?

    Exactly. And what about judges who have family members (say, children) who are gay? Are they also disqualified?

    I’m fairly sure that being a member of group X does not mean that one is automatically disqualified from hearing a case which centers on discrimination against X. I’m know many black judges have ruled on cases involving racial discrimination, women judges have ruled on cases involving gender discrimination, and tax-paying judges have ruled on cases which affect (at least indirectly) their taxes.

    Kman (d30fc3)

  14. Aaron, you mean because being able to marry anyone you ever are likely to fall in love with is, kinda, like, almost, a fundamental right?? 😉

    The point really isn’t whether the two interests are commensurate with each other, but whether either merits disqualification.

    There are a lot of people who place a great deal of religious significance on whether gay marriage is recognized by their state. Should that disqualify judges who share those religious concerns from deciding the case?

    If you take these people at face value, they personally believe that their objections to gay marraige *do* rise to the level of a gay person’s desire to marry – indeed that their concerns are more significant and warrant imposing their religious ideals on other people. I don’t see how one warrants disqualification and the other does not.

    Sarah (c7f910)

  15. His legal record, and that of reversals by the court, are abysmal enough without bringing up
    his ‘better half’, there’s always a prospect he can find someone worse than Rose Bird

    narciso (9d0688)

  16. Sarah

    > Aaron, you mean because being able to marry anyone you ever are likely to fall in love with is, kinda, like, almost, a fundamental right?

    Nope. Not in the sense that it is recognized in the constitution.

    > The point really isn’t whether the two interests are commensurate with each other, but whether either merits disqualification.

    Actually bias is not an all or nothing thing. Everyone, according to your theory has some kind of bias, either because their marriage is threatened by homosexuality, or because their ability to marry is threatened by prop 8.

    So when everyone is biased, you eliminate the one most acutely biased.

    For instance, take the case of that drilling moratorium case a few months back. It would be wrong if the judge ruling in that case owned stock in the companies subject to the moratorium. He could literally affect the value of assets he personally holds. On the other hand, virtually everyone owns and drives a car, especially in Louisiana. So if a drilling moratorium is put in place, the price of gas will probably go up. But that bias is slight, and pretty much inescapable, so it is not disqualifying.

    > There are a lot of people who place a great deal of religious significance on whether gay marriage is recognized by their state.

    If they cannot put their religious beliefs aside, yes.

    Kman

    > I’m fairly sure that being a member of group X does not mean that one is automatically disqualified from hearing a case which centers on discrimination against X.

    You are repeating straw men you erected the last time we discussed this. I did not say that.

    Aaron Worthing (b8e056)

  17. One wonders if Clarence Thomas will do the same thing when/if there is a case that Ginny’s group is politically involved in.

    It depends on the circumstances, of course, and how much she is connected.

    Note that Justice Thomas recused himself in United States v. Virginia because his son was attending VMI at the time.

    Right. Which is, IMO, why an AG who cannot in good conscience defend a law he believes is unconstitutional has an obligation to hire outside counsel to do it – at least at the trial court level.

    And there was plenty of outside counsel willing to do that.

    Aaron, you mean because being able to marry anyone you ever are likely to fall in love with is, kinda, like, almost, a fundamental right??

    George Reynolds thought so.

    Michael Ejercito (249c90)

  18. I question any conclusion that a gay judge is disqualified from deciding a gay marriage case. Are Christian judges also disqualified?

    Should a hard-core Southern Baptist judge recuse himself from deciding a Sunday-closing blue law case, or a liquor law violation case, or a dancing prohibition case?

    Should a closeted gay judge who is deciding a gay marriage case recuse himself if he is being blackmailed by one party or the other? Should he have to explain his recusal?

    Murgatroyd (fd5fcd)

  19. So the fact that he’ll likely be involved in the panel decision probably hurts opponents of Prop 8 in the long run

    In this case, I don’t think having Reinhardt on or off the panel will make much of a difference as to Supreme Court review. This is a very high profile case, with Constitutional issues (which makes it even more prominent than, say, a copyright case), and the Supremes are almost certain both to take it and scrutinize the decision with a fine tooth comb. If they think the decision is wrong, they will say so in no uncertain terms.

    In a more obscure case, the Reinhardt factor might make a difference. But even apart from him, the Ninth Circuit is looked at askance by the Supremes, especially in politically charged cases like this one.

    Bored Lawyer (5f203c)

  20. bored

    Ask yourself a simple question.

    If the 9th circuit upheld proposition 8, would this go to the supreme court.

    And let’s remember that numerous other circuits have already upheld bans on gay marriage.

    murga

    you do know the difference between having a personal stake in the outcome of a case, and just being offended by a certain outcome. a hardcore baptist or whatever might be offended by stores being open on sunday. But you would not argue that the concern is the same as if the judge was reviewing the constitutionality of blue laws… and he himself owned a store on the side.

    Aaron Worthing (b8e056)

  21. Ask yourself a simple question.

    If the 9th circuit upheld proposition 8, would this go to the supreme court

    Except that is not the point I was commenting on. Patterico posted a comment to the effect that it would be better for opponents of Prop. 8 if it were overturned by a more obscure liberal than by Reinhardt, a well-known liberal whose name would draw the Supreme Court’s attention.

    As to that, I said that this case is so prominent that it makes no difference that Reinhardt is on the case. If the Ninth Circuit overturns Prop. 8, the Supremes are going to give it close scrutiny.

    (OTOH, if they uphold Prop. 8, then the Court might or might not step in.)

    Bored Lawyer (c8f13b)

  22. As to that, I said that this case is so prominent that it makes no difference that Reinhardt is on the case. If the Ninth Circuit overturns Prop. 8, the Supremes are going to give it close scrutiny.

    One factor that might help the proponents, at least in en banc review, is that Prop. 8’s scope is extremely limited, and the actual injury cited by the district court in the denial of the marriage license was denial of social and cultural meaning.

    I have already mentioned the Bishop v. Oklahoma case in another post. That will probably end up before the Tenth Circuit by the summer of next year.

    Michael Ejercito (249c90)

  23. There are still issues about the proper scope of the injunction in Perry. A district court, in a suit that is not a class action, can only have jurisdiction over the rights and duties of the parties in the suit. It can not, for example, determine the rights or duties of persons not before the court, such as same-sex couples other than the plaintiffs or state and local government officials other than the defendants. Under Ex Parte Young, the state of California itself is not a party to the suit, and thus can not be directly enjoined. Only the named officials in the suit can be so enjoined.

    And the Ninth Circuit had, in fact, overruled, in part, an injunction that exceeded the district court’s jurisdiction. In Meinhold v. United States Department of Defense, the Ninth Circuit, while ruling that, under the law at the time, military personnel can not be discharged on the basis of sexual orientation (this is distinguishable for discharges on the basis of sexual conduct), it overruled the portion of the district court injunction enjoining the Navy from discharging anyone except the named plaintiffs on the basis of sexual orientation. (Although, to be sure, as a practical matter, Meinhold was a decision on the merits, and would control any similar suit brought by similarly-situated plaintiffs in the Ninth Circuit.)

    Under the doctrine reiterated in Meinhold, the district court injunction can only enjoin the named Perry defendants’ acts towards the named Perry plaintiffs. The named defendants can still deny marriage licenses to other same-sex couples, other county clerks, (like the clerks for Orange, Kern, San Diego, or Imperial Counties) can still deny marriage licenses to same-sex couples, including the plaintiffs, other state agencies not reporting to the governor or attorney general (like the Department of Insurance) can continue to follow Proposition 8, even in acts involving the plaintiffs, an of course, state judges can continue to recognize Proposition 8 as valid law.

    Of course, this is moot if standing for the proponents or Imperial County is ultimately found. (Of course, Reinhardt is a sure bet for voting for proponents’ standing, see his ruling in Yniguez v. Arizonans for Official English.)

    Michael Ejercito (249c90)

  24. ME – yeah, one of the things which makes this a hard case for opponents of Prop 8 to win is that Prop 8, as interpreted by the California Supreme Court, applies exclusively to the use of the word ‘marriage’. The state is still required, under the court’s interpretation of the state constitution, to provide gay couples with the actual substantive rights of marriage. (Which is to say, Strauss v Horton effectively read the state’s domestic partnership statute into the state constitution).

    I think it’s fairly difficult to turn the use of the *word* marriage into a substantial injury.

    It might be different if federal law treated same sex ‘marriages’ the same as opposite-sex marriages but didn’t provide for domestic partnerships … because then the denial of the word ‘marriage’ would effectively deny federal benefits. But that’s not the current situation.

    aphrael (e0cdc9)

  25. It might be different if federal law treated same sex ‘marriages’ the same as opposite-sex marriages but didn’t provide for domestic partnerships … because then the denial of the word ‘marriage’ would effectively deny federal benefits. But that’s not the current situation.

    If that were true, the remedy would have to be sought against the federal government.

    ME – yeah, one of the things which makes this a hard case for opponents of Prop 8 to win is that Prop 8, as interpreted by the California Supreme Court, applies exclusively to the use of the word ‘marriage’. The state is still required, under the court’s interpretation of the state constitution, to provide gay couples with the actual substantive rights of marriage. (Which is to say, Strauss v Horton effectively read the state’s domestic partnership statute into the state constitution).

    The Bishopcase in Oklahoma regards the constitutionality of Question 711, a state constitutional amendment that not only defines marriage, but denies any sort of institution for same-sex couples. To be sure, the specific remedy sought is a marriage license from the Tulsa County Clerk. (The governor and attorney general of Oklahoma are not defendants.) I wonder how the breadth of the amendment will affect the ultimate decision. Would it result in a finding that the only purpose of such laws is animus towards homosexuals, and as such the law is unconstitutional, thus either ordering the Tulsa County Clerk to issue a marriage license or a same-sex couple license with the same benefits? Would it rule solely on the issue of the marriage license, in that denial of the marriage license to the plaintiffs is constitutionally permitted but stating that the case does not involve whether or not same-sex couples have other rights under the U.S. Constitution (similar to Justice Kennedy’s statement in Lawrence v. Texas regarding its applicability to prostitution, sex between minors, and formal recognition of sexual relationships.)

    Michael Ejercito (249c90)

  26. I think the SSM proponents have a better case in Bishop, based on your description of the state’s law.

    Certainly specifically denying any sort of institution for same-sex couples is suggestive of animus and might fail under Romer.

    aphrael (e0cdc9)

  27. I think the SSM proponents have a better case in Bishop, based on your description of the state’s law.

    Certainly specifically denying any sort of institution for same-sex couples is suggestive of animus and might fail under Romer.

    This is true.

    Then again, ion regards to the Question 711 claim, the court might ultimately decide only on the issue of whether or not the plaintiffs in that claim are entitled to the remedy that they seek (a marriage license), while stating that the decision does not answer the question of whether or not Question 711 is unconstitutional to the extent it affects other rights and protections to which same-sex couples may be entitled.

    Michael Ejercito (249c90)

  28. Under the doctrine reiterated in Meinhold, the district court injunction can only enjoin the named Perry defendants’ acts towards the named Perry plaintiffs.

    There are exceptions to the doctrine reiterated in Meinhold.

    The only exceptions are if it is necessary to grant relief to third parties for the prevailing plaintiffs to receive the relief to which they are entitled, and if it is necessary to enjoin third parties for that same reason. (See Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1501-02 (9th Cir. 1996).) Even so, injunctions are to be drawn as narrowly as possible to go no further than what is necessary to provide the prevailing plaintiffs relief.

    A third party enjoined by a court for that reason has, of course, standing to challenge the injunction and appeal the ruling.

    This is not the case here in regards to awarding relief to third parties. The Perry plaintiffs can certainly receive the relief that they were seeking (marriage licenses and recognition of their marriages from state officials) without requiring that the state defendants, let alone third parties, recognize the marriages of third-party same-sex couples. (It is plausible that third-party state and local officials need to be enjoined in this casefor the plaintiffs to get relief; those third-party officials would have standing to appeal if they were so enjoined.)

    Of course, if there is an ultimate merits decision, the extent that the district court injunction, if any, entitled third parties to relief would be a harmless error.

    Michael Ejercito (249c90)


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