Left-liberal panel to review Prop 8 decision, but disqualification issue looms

The Ninth Circuit has selected the panel that will hear the appeal of the ruling striking down California’s Proposition 8, which provides that “only marriage between a man and a woman is valid or recognized in California.” The panel consists of Judges Stephen Reinhardt, Michael Hawkins, and N. Randy Smith.
Judge Reinhardt is perhaps the most notoriously activist left-wing federal appeals court judge in the land. And, according to Ed Whelan, Judge Hawkins isn’t too far behind. Judge Smith was appointed by President George W. Bush and has been on the Court since 2007.
The opponents of Prop 8 have certainly been riding their luck so far. First they drew a gay district court judge; now they draw two liberal activist appellate judges.
Whelan argues, however, the Judge Reinhardt is obligated to disqualify himself from the panel. He points out that Reinhardt’s wife, Ramona Ripston, executive director of the American Civil Liberties Union of Southern California, reportedly consulted with the plaintiffs’ lawyers about the decision to bring the case at hand.
The Code of Conduct for United States Judges requires that a judge “disqualify himself … in a proceeding in which the judge’s impartiality might reasonably be questioned.” How, Whelan asks, is it possible that Reinhardt’s impartiality in this case couldn’t reasonably be questioned when his wife took part in confidential discussions with plaintiffs’ lawyers over whether they should pursue the case?
UPDATE: Ed has examined Ripston’s connection to the litigation more closely. He finds the case for Reinhardt’s disqualification even stronger than he initiially supposed because Ripston was an officer of an entity that acted as a lawyer in the proceeding.