Friday, December 3, 2010

Judge Reinhardt rules against recusing himself--Pro same-sex "marriage" columnist says he should have

No surprise. Emphasis added.

"I have before me defendants-intervenors-appellants’ motion to disqualify myself from this appeal. I have not hesitated to recuse from cases in the past when doing so was warranted by the circumstances. See Khatib v. County of Orange, 622 F.3d 1074, 1074 (9th Cir. 2010); Mohamed v. Jeppesen Dataplan, Inc., 586 F.3d 1108, 1109 (9th Cir. 2009); Buono v. Kempthorne, 527 F.3d 758, 760 (9th Cir. 2008); Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 913, 914 (9th Cir. 2003); Valeria v. Davis, 320 F.3d 1014, 1015 n.** (9th Cir. 2003); Alvarez-Machain v. United States, 284 F.3d 1039, 1039 n.1 (9th Cir. 2002); Coalition for Econ. Equity v. Wilson, 122 F.3d 692, 711 (9th Cir. 1997).

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.”
(see below) United States v. Nelson, 718 F.2d 315, 321 (9th Cir. 1983); see also Sao Paulo State of the Federated Republic of Brazil v. Am. Tobacco Co., 535 U.S. 229, 233 (2002) (per curiam). I will be able to rule impartially on this appeal, and I will do so.
(Well, that settles that.)

The motion is therefore DENIED."

Ed Whelan links to a column written yesterday by Ann Woolner on Bloomberg News. Ms. Woolner supports same-sex "marriage" but even she sees the problem with Reinhardt's not recusing himself.

"Like Virginia Thomas, (Ramona Ripston) can say whatever she believes about any case, even if her husband may eventually help decide it. But Ripston did more than that. The organization she works for advocated the same cause in a state court that is now being advocated before her husband in federal court.

No Recuse

True, the cases aren’t identical, as the current case claims same-sex marriage is protected by the U.S. Constitution, whereas the earlier one was based on the California state constitution.

Reinhardt said yesterday in an order that he’s not going anywhere.

'I will be able to rule impartially on this appeal, and I will do so,' he wrote.

It seems like a close call to me, and because of that, he should have stepped aside. The link between his wife’s legal work and his judicial work is too close.

The over-arching principle as to when federal judges should recuse themselves is whether the mere appearance of bias is reasonable. That’s according to the federal judiciary’s Code of Conduct and Supreme Court precedent. I think it’s reasonable in Reinhardt’s case."

According to Judge Reinhardt's satement, Ms. Woolner has just joined the ranks of the unreasonable.


Anonymous said...

"Reasonable" people often disagree. That's why we have judges.

Anonymous said...

Judge Reinhardt's statement only speaks in regard to "a reasonable person WITH KNOWLEDGE OF ALL THE FACTS". As Ms. Woolner neither claims to have all the facts nor has it been definitively adjudicated that she has all the facts, I do not conclude that "Ms. Woolner has just joined the ranks of the unreasonable", and likewise, I don't conclude that Judge Reinhardt has either.