Published January 7, 2011
The following items originally appeared on National Review Online’s Bench Memos blog:
- Reinhardt’s Non-Disqualification Memorandum—Part 1
- Reinhardt’s Non-Disqualification Memorandum—Part 2
- Reinhardt’s Non-Disqualification Memorandum—Part 3
- Reinhardt’s Non-Disqualification Memorandum—Part 4
- Reinhardt’s Non-Disqualification Memorandum—Part 5
Reinhardt’s Non-Disqualification Memorandum—Part 1
A month ago, Judge Reinhardt immediately denied Prop 8 proponents’ motion to disqualify him from taking part in the Prop 8 appeal. As he put it, “for reasons that I shall provide in a memorandum to be filed in due course, I am certain that ‘a reasonable person with knowledge of all the facts would [not] conclude that [my] impartiality might reasonably be questioned.'” (Bracketed material in original.)
Yesterday, Reinhardt issued the promised memorandum. As I will discuss in this and some follow-on posts, Reinhardt’s memorandum is an utterly unpersuasive exercise in obfuscation and gimmickry.
Let’s begin with the fact that Reinhardt, rather than squarely presenting to the trusting reader the facts and arguments that Prop 8 proponents made in their motion, misrepresents and omits inconvenient points. From their motion (pp. 6-7), here’s a succinct statement (citations omitted; emphasis in original) by Prop 8 proponents of their case for disqualification:
The facts of this case would plainly lead a reasonable person to conclude that Judge Reinhardt’s impartiality might reasonably be questioned. His wife and the organization she leads have not only been active in seeking to redefine marriage in California and active in opposition to Proposition 8, but they have been active participants in this very lawsuit: Plaintiffs’ attorneys consulted with Ms. Ripston before filing suit; ACLU/SC represented amici and proposed intervenors in the court below urging the court to decide the case in favor of Plaintiffs; Ms. Ripston, as Executive Director of ACLU/SC, “is responsible for all phases of the organization’s programs, including litigation, “and Ms. Ripston publicly “rejoice[d]” over the district court decision that is before this Court for review, praise that was tempered only by the concern that “it’s a long road ahead until final victory.” That “road” obviously passes through this Court, and Ms. Ripston’s colleague emphasized the importance of working “to give this case the best possible chance of success as it moves through the appeals courts.”
Two initial observations:
1. Here is how Reinhardt mischaracterizes the recusal motion in his lead paragraph of discussion:
The chief basis for the recusal motion appears to be my wife’s beliefs, as expressed in her public statements and actions, both individually and in her capacity as Executive Director of the American Civil Liberties Union of Southern California. [Emphasis added.]
Continuing his subtle but telling distortion, Reinhardt states that his “wife’s views, public or private … are of no consequence,” and he asserts that proponents’ supposed “contention that I should recuse myself due to my wife’s opinions is based upon an outmoded conception of the relationship between spouses.”
Prop 8 proponents’ motion was not based on Ramona Ripston’s subjective “beliefs” or her “private” views. It was based entirely and directly on her “public statements and actions”—especially her involvement in this very case—and the motion would be exactly the same whether or not those public statements and actions reflect her actual beliefs. In other words, Ripston’s actual beliefs are irrelevant to proponents’ motion.
It’s also not true that proponents’ recusal motion rests on “an outmoded conception of the relationship between spouses.” Indeed, the case for recusal would be exactly the same if Ramona Ripston were instead a man named Ramon who was Reinhardt’s same-sex partner. (Speaking of “outmoded,” I’m surprised to see a proud progressive commit the retrograde heterosexist offense of using this phrase: “regardless of whether the spouse or the judge is the male or the female.”)
Reinhardt’s misrepresentation may seem trivial, but he uses it to misplay the feminist card and falsely depict the recusal motion to be sexist—and thus to win favor with the reader.
2. Nowhere in his memorandum does Reinhardt acknowledge that Ripston publicly celebrated (“rejoice[d]” over) Judge Walker’s ruling against Prop 8—the very ruling under review. Nowhere does he acknowledge that the ACLU group that Ripston leads had (as proponents’ motion documents) acclaimed its own “lead role” in “the fight to end marriage discrimination” in California. Nowhere does he give the reader a fair picture of the facts that underlie proponents’ motion.
Indeed, when Reinhardt does acknowledge unwelcome facts, he races to minimize them. How about the fact that Ripston’s group filed two amicus briefs in support of plaintiffs in the district-court proceedings in this very case? Somehow Reinhardt finds it significant to point out that the briefs were filed “by six civil rights organizations and signed by the lawyer for one of the other groups,” that they were “among twenty-four amicus briefs filed in the district court on behalf of 122 organizations and private individuals,” and that Walker didn’t cite the briefs in his ruling. It’s difficult to see how those trivial facts can possibly have any bearing on the disqualification question.
Similarly, Reinhardt dismisses the fact that plaintiffs’ counsel met with Ripston and her legal director in May 2009 for confidential discussions about whether the lawsuit should be filed. Reinhardt states: “At that meeting the ACLU/SC was asked to support the lawsuit and vigorously declined. Surely, that provides no cause for my recusal.” But declaring “Surely” does not amount to an argument. Why wouldn’t a reasonable person assessing whether Reinhardt’s impartiality might reasonably be questioned find it significant that plaintiffs’ counsel consulted with Ripston about filing this very case?
Reinhardt’s Non-Disqualification Memorandum—Part 2
Judge Reinhardt’s conclusion that he need not disqualify himself from the Prop 8 appeal turns heavily on his interpretation of two of the statutory disqualification provisions and of the interplay between those provisions. One provision is section 455(a) (of Title 28), which states:
Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.—
The other provision is section 455(b)(5)(iii), which I reproduce here in the broader context of 455(b)(5) (italics added):
(b) He [i.e., any justice, judge, or magistrate judge of the United States] shall also disqualify himself in the following circumstances: … [Where]
(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
(i) Is a party to the proceeding, or
an officer, director, or trustee of a party;
(ii) Is acting as a lawyer in the proceeding;
(iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;
(iv) Is to the judge’s knowledge likely to be a material witness in the proceeding.
Here’s a quick summary of Reinhardt’s core legal analysis (from pages 7 to 13 of his memorandum):
1. Recusal is not required under section 455(b)(5). The ACLU-SC’s “limited participation in the district court does not endow my wife or the ACLU-SC with any ‘interest that could be substantially affected by the outcome of the proceeding.'” “At best it could be said that through the filings the ACLU/SC has made clear its position regarding how this case should be decided.” “[T]he suggestion that either my wife or the ACLU/SC could benefit in any tangible way from this court’s ultimate decision simply because the ACLU/SC signed on to peripheral lower court filings is highly ‘unreasonable and speculative.'”
2. Recusal is also not required under section 455(a). “It is significant that none of §455(b)(5)’s criteria for recusal based on a family member’s involvement in a case applies here. As the Supreme Court has explained, ‘it is unreasonable to interpret §455(a) (unless the language requires it) as implicitly eliminating a limitation explicitly set forth in § 455(b).'” Liteky v. United States (1994). Perhaps there could be “special factors or unforeseeable circumstances that might render § 455(a) applicable where Congress, in adopting the limitations of §455(b)(5), failed to consider certain types of actions or where new practices have arisen due to changes in the practice of law or other societal developments.” But there are no such factors or circumstances here.
Before addressing Reinhardt’s analysis head-on (in my next post, probably tomorrow), I’d like to highlight a striking anomaly: Reinhardt can’t provide a coherent justification for his own stated recusal policy under his reading of sections 455(a) and 455(b)(5). As Reinhardt describes that policy: “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.” Further, Reinhardt emphasizes that it is “important” that “judges not recuse themselves unless required to do so.”
In a footnote (note 5 on p. 10), Reinhardt seems to suggest that he adopted his stated recusal policy pursuant to section 455(b)(5):
Had the ACLU/SC filed a brief in this court, it could conceivably be argued that the organization had an interest in the outcome of our deliberations, on the theory that it could then seek to claim a portion of the credit for any favorable decision this court issued in order to attempt to raise funds or solicit new members. Although I find such arguments highly questionable, in order to avoid any possible claim of conflict of interest I have, as stated above, always recused myself from cases in which the ACLU/SC participated in any way in this court, including filing a brief, amicus or otherwise.
But Reinhardt isn’t maintaining that he is “required” to recuse himself in all Ninth Circuit cases in which his wife’s organizations participates. On the contrary, he finds “highly questionable” the proposition that his wife has an “interest” in a case merely by virtue of her organization’s having filed a brief on appeal. Further, he indicates that he has adopted an overly broad recusal policy “in order to avoid any possible claim of conflict of interest.”
But, of course, it’s always “possible” for someone to make a wholly unreasonable claim of conflict of interest. So in context, it seems clear that what Reinhardt means by “any possible claim” is really “any reasonable claim,” whether or not actually meritorious.
What this suggests—and what Reinhardt seems eager to obscure—is that his stated recusal policy actually implements section 455(a), not section 455(b)(5), as Reinhardt has effectively made the sound judgment that “his impartiality might reasonably be questioned” in cases in which his wife’s organization participates. But the interpretation of section 455(a) and of its interplay with section 455(b)(5) that Reinhardt offers in his non-disqualification memorandum would not permit him to rely on section 455(a).
Reinhardt’s Non-Disqualification Memorandum—Part 3
As I summarized in Part 2, Judge Reinhardt determined in his non-disqualification memorandum that section 455(a), which requires that a judge disqualify himself “in any proceeding in which his impartiality might reasonably be questioned,” simply doesn’t come into play because “none of §455(b)(5)’s criteria for recusal based on a family member’s involvement in a case applies here.”
Reinhardt’s determination rests on his expansive reading of a brief passage in the Supreme Court’s 1994 decision in Liteky v. United States. But his expansive reading is inconsistent with the reasoning of Liteky itself. It’s also a reading that all five members of the Liteky majority contemporaneously rejected. And the Judicial Conference of the United States, in its Code of Conduct for United States Judges (which closely tracks section 455), has also rejected that reading.
At issue in Liteky was the interplay between section 455(a) and section 455(b)(1), which provides that a judge shall recuse himself where “he has a personal bias or prejudice concerning a party.” It had long been settled that section 455(b)(1) is limited by what is called the “extrajudicial source” doctrine. What that ungainly jargon means (to borrow from the majority opinion) is that a judge need not recuse himself under 455(b)(1) for bias or prejudice “properly and necessarily acquired in the course of” a trial (as, for example, from dealing with a defendant who “has been shown to be a thoroughly reprehensible person”). The defendants in Liteky had moved to disqualify the trial judge under section 455(a) for allegedly biased behavior, all of which involved routine judicial proceedings, and the question for the Court was whether section 455(a) was also limited by the extrajudicial-source doctrine. All nine justices agreed that it was, but they divided 5-4 on their reasoning.
In his majority opinion, in a passage that Reinhardt quotes from, Justice Scalia states:
As we have described, § 455(a) expands the protection of § 455(b), but duplicates some of its protection as well—not only with regard to bias and prejudice but also with regard to interest and relationship. Within the area of overlap, it is unreasonable to interpret § 455(a) (unless the language requires it) as implicitly eliminating a limitation explicitly set forth in § 455(b). It would obviously be wrong, for example, to hold that “impartiality could reasonably be questioned” simply because one of the parties is in the fourth degree of relationship to the judge. Section 455(b)(5), which addresses the matter of relationship specifically, ends the disability at the third degree of relationship, and that should obviously govern for purposes of § 455(a) as well.
As I understand his reasoning, Reinhardt reads the four subparts of section 455(b)(5) as setting forth an exhaustive list—an explicit “limitation,” within the meaning of Liteky—of the circumstances in which a relative’s involvement in a proceeding requires the judge’s recusal. Based on that r
eading (and on what he sees as the absence of any “special factors or unforeseeable circumstances”), he concludes that Prop 8 proponents have no available claim for disqualification under section 455(a).
Reinhardt’s reasoning is badly flawed, for several reasons:
1. The Liteky discussion that Reinhardt relies on is limited to a situation in which all of the allegedly disqualifying conduct was within the scope of 455(b)(1). Thus, for example, when the Court states that it “would obviously be wrong … to hold that ‘impartiality could reasonably be questioned’ simply because one of the parties is in the fourth degree of relationship to the judge” (emphasis added), it is clearly leaving open the possibility that other facts, in combination with, say, a distant relative’s “acting as a lawyer in the proceeding” (455(b)(5)(ii)), could require disqualification under section 455(a).
Here, similarly, Prop 8 proponents have presented a slew of facts beyond Ripston’s alleged “interest” under section 455(b)(5)(iii)—e.g., her public celebration of Judge Walker’s ruling, her confidential consultation with plaintiffs’ counsel, and her organization’s self-proclaimed “lead role” in combating Proposition 8. The totality of those facts, in combination with the facts alleging giving rise to Ripston’s “interest,” must therefore be addressed under section 455(a).
2. On November 1, 1993—two days before the oral argument in Liteky—seven justices of the Supreme Court, including all five members of the Liteky majority, issued a joint Statement of Recusal Policy* that expressly reasons that section 455(a) remains available as a “less specific” basis of recusal when a relative covered by 455(b)(5) previously acted, but is no longer acting, as a lawyer in the proceeding. In other words, these justices determined that section 455(a) continues to apply even when all of the allegedly disqualifying conduct is addressed by a subpart of 455(b)(5).
In Liteky, neither the majority opinion nor the opinion concurring in the judgment (which disagreed with the majority’s discussion of the interplay of 455(a) and 455(b) opinion) argued that there was any tension between the Liteky holding and the Statement of Recusal Policy. (Justice Kennedy, the author of the opinion concurring in the judgment, was also one of the signatories to the Statement of Recusal Policy.) Nor has that Statement of Recusal Policy been modified in the intervening years. Indeed, Chief Justice Roberts adopted that same policy in September 2005.
3. The Code of Conduct for United States Judges, adopted by the Judicial Conference of the United States, has a disqualification provision—Canon 3.C—that is virtually identical to section 455. (Even if there are any relevant differences between Canon 3.C and section 455, Reinhardt is subject to both.) The Judicial Conference’s official commentary on the provision that parallels a section 455(b)(5) subpart expressly states that even if conduct falling under that section doesn’t require disqualification, disqualification might separately be required under the 455(a) analogue “if ‘the judge’s impartiality might reasonably be questioned.'” The Committee on Codes of Conduct, in an opinion as recent as June 2009 (Advisory Opinion No. 38), cites that commentary. In the nearly two decades since Liteky, the Judicial Conference has never determined that Liteky requires a different conclusion.
* From what I can tell, this document has not previously been available online. My thanks to the Supreme Court’s public information office for providing me the copy that I have posted.
Addendum—One further observation: When Reinhardt immediately denied Prop 8 proponents’ motion last month, he took the position that the section 455(a) standard did govern: “Here, for reasons that I shall provide in a memorandum to be filed in due course, I am certain that ‘a reasonable person with knowledge of all the facts would [not] conclude that [my] impartiality might reasonably be questioned.'” His reversal on this central issue provides further evidence that Reinhardt had simply determined his desired result without actually having responsibly reasoned his way to it.
Reinhardt’s Non-Disqualification Memorandum—Part 4
Judge Reinhardt’s next big blunder in his non-disqualification memorandum comes when Reinhardt, after wrongly concluding that section 455(a) doesn’t apply, addresses whether it would require his disqualification if it did apply. (See pages 13-14.)
As I understand Reinhardt’s argument, the “facts” that he maintains that a reasonable person would have to consider in determining whether Reinhardt’s impartiality “might reasonably be questioned” under section 455(a) would have to include (1) that Reinhardt does “not in any way condition [his] opinions on the positions [his wife] takes regarding any issues,” and (2) a “familiar[ity] with [Reinhardt’s] judicial record throughout [his] career.”
Reinhardt’s position is simply absurd. Under his view, the determination whether a judge’s impartiality “might reasonably be questioned” based on his spouse’s activities cannot be based on the publicly knowable facts but would instead depend on an intimate assessment of the marital relationship:* Is Judge X more influenced by his wife’s opinions than Judge Y is influenced by her husband’s? If so, then (under Reinhardt’s analysis) the identical set of spousal activities could require Judge X’s disqualification but not Judge Y’s.
Likewise, Reinhardt’s claim that the hypothetical reasonable person making the assessment under section 455(a) must be “familiar with my judicial record throughout my career” ridiculously suggests that otherwise identical sets of facts could require Judge X’s disqualification but not Judge Y’s if their judicial records differ in some undefined and indeterminate way. Or perhaps Reinhardt is really just arguing that any reasonable person would know from his judicial record that he’s already so biased in favor of the cause of same-sex marriage that his wife’s views couldn’t possibly have any influence on him. But he cites no precedent for the extraordinary proposition that section 455(a) will apply differently to different judges based on their established ideological biases.
* Reinhardt isn’t claiming that section 455(a) somehow requires that a reasonable person presume that a spouse’s activities or views never will influence a judge (and such a claim would be at war with human experience as well as with various of the bases for disqualification under 455(b)(5)). He is making a factual claim about his wife’s non-influence on him: “I do not condition my opinions on the positions she takes regarding any issues.” Whether or not that claim is correct, it cannot possibly be something that the reasonable person is expected to assess in determining whether a judge’s impartiality “might reasonably be questioned.”
Reinhardt’s Non-Disqualification Memorandum—Part 5
There’s no grand mystery why Judge Reinhardt, in his non-disqualification memorandum, would misrepresent Prop 8 proponents’ argument and obscure or entirely omit key f
acts on which they rely (see Part 1); why he would wrongly conclude that the section 455(a) test for disqualification—whether a judge’s “impartiality might reasonably be questioned”—doesn’t apply (see Part 3) and implausibly strain to root his own stated recusal policy in the narrower test under 455(b)(5) (see Part 2); and why he would absurdly construe section 455(a) to apply differently to different judges on identical sets of facts (see Part 4). Reinhardt is desperate to avoid squarely teeing up this question:
Might a judge’s impartiality reasonably be questioned when that judge takes part in reviewing the decision in a case in which his wife consulted with plaintiffs’ counsel about the very decision to file the lawsuit, in which his wife authorized the ideological organization that she heads—and that has vaunted its “lead role” on the broader ideological cause at issue—to file amicus briefs supporting plaintiffs in the trial proceedings, and in which his wife publicly celebrated the very ruling that her husband is now reviewing?
The simple reason for Reinhardt’s desperation is that the question clearly and forcefully answers itself—and I invite anyone who is inclined to disagree to consider not only the manifold defects of Reinhardt’s memorandum but also this hypothetical.
Ed Whelan is president of the Ethics and Public Policy Center in Washington, D.C., and is a regular contributor to National Review Online’s Bench Memos blog.