[Guest post by Aaron Worthing; if you have tips, please send them here.]
Thanks to A.S. in the comments to the prior post on the Proposition 8 happenings today, I learned that Reinhardt had finally issued the memo explaining why he didn’t need to disqualify himself. You can see where I previously argued he should, here. And you can read his memo on why he isn’t doing so, here. When he first refused, Patterico wrote:
100 bucks says he cites Scalia’s decision refusing to recuse in that litigation about Cheney’s energy meetings.
I’m not saying that is relevant. It will just be a fuck you. And Reinhardt is all about that.
If any of you were fool enough to take that bet, you owe Patterico $100 a pop. I might suggest you deliver it by the various donation options on the side (and maybe consider doing so even if you didn’t take him up on the bet).
Anyway, so this is the logic. First, Reinhardt calls the proponents sexists. Yes, really: “Proponents’ contention that I should recuse myself due to my wife’s opinions is based upon an outmoded conception of the relationship between spouses.” I actually agree with his ultimate argument that you cannot project the opinions of one spouse to another but there is no need to insult the proponents in the process.
Then he discusses his wife’s connections to the actual suit:
The first such action to which Proponents point is that my wife and the ACLU/SC’s then-legal director attended a meeting with one of Plaintiffs’ lawyers and a supporter of Plaintiffs’ lawsuit prior to the filing of that action in the district court. At that meeting the ACLU/SC was asked to support the lawsuit and vigorously declined. Surely, that provides no cause for my recusal.
But in fact it can because it means she might know things about the case that have not been disclosed to the public.
As for his wife’s organization’s participation as amicus below, he holds that 28 U.S.C. § 455 doesn’t quite apply. Which is technically true. But there is word missing from this opinion: “canon.” That is, Reinhardt limits his examination to a number of statutes dealing with recusal, but never once considers what the Code of Judicial Conduct has to say on the matter, which includes certain canons of ethics that he is bound to obey. That is relevant because there is a critical difference in the language between § 455 and Canon 3(C). Section 455 says:
(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
It goes on to list some specific circumstances. By comparison, Canon 3(C) says:
A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances in which:
And then it goes on to list pretty much the same specific circumstances. But notice the critical difference in language. Canon 3 says that such circumstances include “but [are] not limited to” that list of circumstances. Reinhardt goes on to pretend that this list is exhaustive. And maybe that is a reasonable reading of the statute, but in the Canon it is better understood as illustrative of the kinds of issues that should disqualify it.
So consider one of the specifics on the list:
(d) the judge or the judge’s spouse, or a person related to either within the third degree of relationship, or the spouse of such a person is:
(i) a party to the proceeding, or an officer, director, or trustee of a party;
(ii) acting as a lawyer in the proceeding;
As Ed Whelan noted “[i]n this case, Ripston [Reinhardt’s wife] was an officer of an entity that acted as a lawyer in the proceeding—a trivial variation on the examples given.” And given the triviality of the difference, Reinhardt should have recused himself from this case. Reinhardt himself said that “I do not participate in any actions by this court when the organization of which my wife is the Executive Director makes any appearance or files any brief, amicus or otherwise, before this court.” But he wants to say that if she only files in the lower court, he is clean.
Reinhardt should have recused himself. And the fact that he can be almost guaranteed to rule in favor of gay marriage is beside the point, regardless of his wife’s involvement in the litigation or not is beside the point. As I wrote a few months ago, responding to a similar argument by Orin Kerr:
[T]he 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.
Anyway, Reinhardt should have recused himself. But as I have said from the beginning, a Reinhardt victory is a pyrrhic one. One involving such obvious misconduct would only be more likely to be overturned.
[Posted and authored by Aaron Worthing.]