Judge Stephen Reinhardt has at last issued a memorandum explaining why he declined to recuse himself from the three-judge panel reviewing Judge Vaughn Walker’s decision striking down California’s Proposition 8, which provides that “only marriage between a man and a woman is valid or recognized in California.” The motion by Proposition 8’s proponents to disqualify Judge Reinhardt argued that his impartiality in the matter might reasonably be questioned because “his wife [Ramona Ripston] and the organization she leads [ACLU/SC] 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; [and] Ms. Ripston, as Executive Director of ACLU/SC, “is responsible for all phases of the organization’s programs, including litigation. . . .”
Ed Whelan describes Judge Reinhardt’s memorandum purporting to address these concerns as “an utterly unpersuasive exercise in obfuscation and gimmickry.” I would go a bit further and call it an exercise in intellectual dishonesty.
Perhaps the most fundamental form of intellectual dishonesty (as opposed to outright lying) is an unwillingness to state correctly the argument presented. Here is how Judge Reinhardt characterizes the argument being advanced in favor of his disqualification:
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.
Reinhardt then states that his wife’s views, public or private, are of no consequence.
As shown above, however, the chief basis for the recusal motion is not his wife’s beliefs, but rather her involvement in the very case Judge Reinhardt will decide.
Reinhardt attempts to minimize his wife’s involvement. He notes that the brief filed by his wife’s organization was also filed by other organizations; that there were other amicus briefs as well; and that Judge Walker didn’t cite the brief filed by his wife’s group. These facts have little, if any, bearing on reasonable perceptions of Judge Reinhardt’s impartiality or lack thereof. Invoking them is like arguing that a woman is only a little bit pregnant. Advocacy in litigation is advocacy in litigation regardless of how persuasive the advocacy is or how many other entities are also advocating.
As Whelan shows, Reinhardt also excludes key facts from his discussion. So his intellectual dishonesty extends beyond mischaracterizing the argument for his recusal to presenting a less than full account of the facts.
Judge Reinhardt’s memorandum on the issue of recusal coincides with an order by the panel in the litigation itself. The panel has certified to the California Supreme Court the question of whether the appellants have standing to appeal Judge Walker’s decision. I discussed this issue briefly in connection with the oral argument in the case.
The standing issue is one of state law and apparently no controlling state law precedent exists. Thus, the panel is asking, in effect, for the state supreme court to decide the question for it. Proceedings in the Ninth Circuit will be stayed until the state court rules. Only if the state court finds that the appellants have standing will the panel proceed to decide the underlying issue of the constitutionality of Prop 8.
Judge Reinhardt wrote a concurring opinion in which he states that the case for standing appears to be strong. I thought at the time of the oral argument that he was itching to decide the merits of this case (he would be, I assume, even if his wife had not participated in it). Now Judge Reinhardt has just about said as much, expressing, in essence, his yearning for “an orderly review by the federal courts of the critical constitutional question that is of interest to all Americans, and particularly to the millions of Californians who voted for Proposition 8 and the tens of thousands of same-sex couples who wish to marry in that state.”
It is also in the interest of Americans that the critical issue in the Prop 8 case be resolved by judges whose impartiality cannot be questioned. Unfortunately, Judge Reinhardt is not such a judge.