A Challenge to Liberal Legal Ethicists

by Ed Whelan

Just wondering: Is there any legal ethics specialist who is willing to opine that Judge Reinhardt is not obligated to disqualify himself from the Prop 8 appeal?

Here’s a high-level review of the two separate grounds for disqualification. (See the linked posts for more detail and documentation.)

1. Reinhardt’s wife is executive director of the ACLU Foundation of Southern California. The ACLU Foundation of Southern California participated as counsel for amicus (and as counsel for proposed plaintiff-intervenors) in the district-court proceedings in this very case.

Canon 3.C of the Code of Conduct for United States Judges provides a non-exhaustive list of circumstances in which a judge must disqualify himself on the ground that his “impartiality might reasonably be questioned.” Subpart (1)(d) states that those circumstances “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 statutory law (28 U.S.C. § 455) sets forth virtually identical grounds for disqualification.

In this case, Reinhardt’s wife was an officer of an entity that acted as a lawyer in the proceeding—a trivial variation on the examples given.

Judge Reinhardt properly has an established policy of disqualifying himself in all cases involving the ACLU Foundation of Southern California. He presumably did not apply that policy when the Prop 8 appeal was assigned to him because he was unaware of the ACLU Foundation of Southern California’s involvement. Now that he has become aware, he must disqualify himself.

2. The lawyers for plaintiffs consulted with Reinhardt’s wife in deciding whether to file their lawsuit. In other words, Reinhardt’s wife was actually involved in this case.  

By the way, I’ve seen a lot of fog in the blogosphere about how Reinhardt’s situation is supposedly not distinct from various other situations involving conservative judges. But no one has actually pointed to a case in which a judge’s spouse did anything like (1) head an entity that participated in the very case, or (2) become actually involved in the very case. Indeed, on this latter point, I’ll note that Eugene Volokh, in a post months ago entitled “Justice Thomas and Judge Reinhardt,” distilled this rule: Situations in which a judge should have to recuse himself because of a family relationship “should generally be relatively rare situations, and limited to the family member’s actual involvement in a case and not just the family member’s political or ideological sympathy or alliance with a party.” (Emphasis added.) That “actual involvement” is exactly what we have here.

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