Should Judge Reinhardt Recuse Himself from Perry v. Schwarzenegger? (A longish post.)

As many of you know, this past summer Perry v. Schwarzenegger was litigated in the Northern District of California. At issue was whether the Proposition 8, now enshrined in the California Constitution, violated the Due Process clause and/or the Equal Protection clause of the 14th Amendment. Vaughn Walker, the District Court judge, ruled that it violated both, and was thus unconstitutional. However, the defendants (in this case, actually, not Schwarzenegger) immediately appealed to the Ninth Circuit and were successful in getting a stay, so Judge Walker's order will not be enforced until the appeal is decided on the merits. This week, the three-judge panel which will be hearing the case was chosen. One of the judges is a Bush II appointee, and is conservative, one is a Clinton appointee, and is middle of the road liberal, and one, Judge Reinhardt, is a Carter appointee, and is considered to be one of the most liberal judges on the Ninth Circuit, which means he is one of the most liberal judges in the country. He also happens to be one of the most reversed judges at the Supreme Court level, including such famous cases as Washington v. Glucksberg (the right to die case).

In any case, the defendants, and much of the conservative media, have been calling for Judge Reinhardt to recuse himself from the hearing because of the apparent bias. It turns out that Judge Reinhardt's wife, Ramona Ripston, is the Executive Director of the ACLU of Southern California.

What exactly that means is where I get bogged down. From the defendants' petition for recusal, it appears that the ACLU of Souther California has taken a somewhat active role in the case, but what that is, remains unclear. (All I have is the defendant's motion, so I don't know the other arguments.) But according to the motion, the ACLU/SC represented a different set of plaintiffs in front of the California Supreme Court, in an effort to disqualify Prop. 8 under California state law (which was unsuccessful). Additionally, the ACLU/SC has obviously spoken out against Prop. 8 numerous times and vowed to fight it, etc.

Regarding what the ACLU/SC has done in Perry, it looks even murkier. From what I can tell, the ACLU/SC tried to intervene (become a party) to the original suit in District Court, was unsuccessful, and then also tried to file an amicus brief on behalf of the plaintiffs (I'm not sure if they were allowed to, in the end.) It is unclear what role Ripston had in any of this, but two factors seem at once both relevant and unhelpful: (1) Ms. Ripston is not a lawyer, so her name probably isn't on anything, but (2) she is, according to the ACLU/SC website, deeply involved in everything they do. So this can go either way.

Ms. Ripston also publicly lauded the district court's decision in Perry, and apparently, before the litigants in Perry brought the case, they consulted with her and a few other lawyers as to whether they should bring it or not. (There was a large debate in the progressive community whether it was a good time to litigate in federal court a constitutional right to gay marriage.) We do not know what she advised them.

Additionally, it appears that Judge Reinhardt has a policy of recusing himself whenever the ACLU/SC is "involved" in a case. Obviously, as I don't know what is meant by "involved", I can't figure out what he would normally do in such a case. In any case, Judge Reinhardt denied the motion, and said he will hear the case.

The Code of Conduct for United States Judges (a set of ethical principles and guidelines adopted by the Judicial Conference of the United States), Canon 3.C (Subpart (1)(d)) states that circumstances in which a judge's impartiality may reasonably be questioned

“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.” Federal law has a virtually similar provision.*

I don't think there is a very strong textual argument that Reinhardt must recuse himself because I think everyone would agree that neither Ripston nor the ACLU/SC is a party to the proceeding, and that she is not a lawyer, so legally she cannot act as a lawyer.

Ed Whelan has argued that since Ms. Ripston is "an officer of an entity that acted as a lawyer in the proceeding", the difference is trivial, and Reinhardt should recuse himself. I would dispute this, and argue that the difference is quite significant. First, we can't be saying that this is what the law mandates, because the statute specifically draws two separate scenarios; if the drafters wanted to combine them, (as Mr. Whelan does) they could have easily done so. The fact that they didn't is, I think, instructive. Second, Whelan's reading would greatly expand the scope of the provision. The ACLU, for example, is interested in pretty much any case that involves a constitutional right, and a good deal many besides. They will try to either represent or file an amicus for most such cases. Seeing as most cases that involve constitutional rights will involve federal court, and Reinhardt sits on a federal court, it would be a huge burden if Reinhardt had to recuse himself everytime the ACLU/SC just tried to get involved, especially if it was only at the District Court level.

So, the statute doesn't cover it. Which is fine, because in most of these situations, I think, it is rare for a judge to go just by the book; typically they recuse themselves by a much stricter standard, so as to leave no doubt.

So we have two issues, I think. Two kinds of bias. One, do we think that Judge Reinhardt is biased because of his wife's position with the organization (assuming the facts as I have related them are 100% true). And two, even if his wife does not make him biased, does the relationship give the perception of bias, which means Reinhardt should recuse himself regardless.

Relatedly, what standard should we adopt? On the one hand, Judge Reinhardt is a very liberal judge, and it is almost assured that he would have ruled in favor of the plaintiffs anyway. Reinhardt is probably the stereotypical liberal activist judge of every conservative's nightmares. He is famous for going out on a limb, and the Supreme Court apparently takes an active interest in reversing his opinions. It seems highly unlikely to me that such a person is in danger of changing his opinion to make his wife happy, especially if he doesn't care about the Supreme Court.

On the other hand, a standard by which we would allow a judge to only recuse himself where he felt, subjectively, that he would not be swayed by his relationship to the parties is obviously faulty; would we let him hear this case, then, if his wife was the litigant or the attorney, even though we are sure it wouldn't really effect the decision?

So, then, question 2. Would a reasonable person perceive this to be bias? Depends what you mean by reasonable. Anybody familiar with his work, knows how he will decide regardless. However, most people who care about the outcome of Perry are not familiar with his work, and might very well perceive there to be impermissible bias. On the other hand, this isn't a case where his wife is the litigant or the party's attorney, and the casual observer would have no clue as to the connection, either.

Which gets us to the trees falling in forest problem. If there is no actual objective bias at work, and no one is aware of the fact that would lead knowledgeable people to think there might ve a perception of bias, is there any perception of bias?

Put another way, if we adopted a standard by which Judge Reinhard had to recuse himself just because "it doesn't look good", then we open the door to cases where, if I, as a litigant, don't like the judge assigned to hear my case, will find some ostensible, perhaps even attenuated connection, but play it up so now that it appears there is a perception of bias. And, voila, I can disqualify my judge.

For example, Justice Thomas's wife is a Tea Party leader and is probably on record saying all sorts of things like "Obamacare is unconstitutional." Does that mean that we will think Justice Thomas is biased when he hears a case that challenges healthcare's constitutionality? People who follow the Court at all, of course, will realize that probably far more influential to Justice Thomas's thinking is Justice Thomas's uber-conservative jurisprudence than any opinion his wife may hold, but now that I've told everyone about his wife's beliefs, does that mean there is now a perception of bias?

The irony of all this is that my arguments for Reinhardt's lack of perceived bias is based on his obvious actual bias, which however is permissible bias - the bias of his jurisprudence.

*The difference is this. The Canon states

"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 lists the factors mentioned above. However, the statute, 28 USC § 455 states

"(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:"

- and then lists the factors.

To me, it's possible to read the Canons as saying that the factors are part of a non-exhaustive list of scenarios in which a judge's impartiality is reasonably questioned, while reading the statute as saying that the factors do not describe scenarios in which a judge's impartiality is reasonably questioned, just other scenarios in which he must recuse himself.

I'm not sure what the difference would be. Either way, I think the textual argument is strong, that if it's a scenario that is not covered by the factors (but very easily could have been if that was the drafters' intention), it's probably unlikely that it's a scenario in which the judge's impartiality is questioned.