In his order yesterday denying the motion to disqualify himself from hearing the Prop 8 appeal because of his wife’s involvement (see here, here, and here) in the case, Judge Reinhardt stated that he was “certain” that “a reasonable person with knowledge of all the facts would [not] conclude that [my] impartiality might reasonably be questioned.” But Reinhardt gave not a hint of the reasons that would justify his conclusion, instead promising that he would provide such reasons “in a memorandum to be filed in due course.”
I see two possible realities underlying Reinhardt’s order. One alternative is that Reinhardt has in fact done whatever work he has deemed necessary to achieve (rightly or wrongly) the crystalline clarity on the matter that he professes. The second alternative is that he is just blowing smoke.
1. Let’s consider the first alternative:
If Reinhardt has genuinely reached closure on the issue, it would be reasonable to expect that he will provide in short order his promised memorandum setting forth his reasons. After all, it ought to be a simple matter—a half-day’s work, perhaps—to put into a public document any careful analysis that he has already conducted that has produced his state of certainty. And, insofar as the matter has required any refined thinking on his part, he should want to finish off the matter while it’s fresh in his mind.
Indeed, one would have thought that Reinhardt would be eager to dispel the concerns that have been raised before he takes part in next Monday’s oral argument. Instead, while rushing to issue his order—the disqualification motion was filed at 6:30 p.m. PT Wednesday, and Reinhardt’s denial order was filed at 7 a.m. PT Thursday—he didn’t see fit to provide even a single clue as to his reasons.
2. Under the “blowing smoke” alternative, Reinhardt has determined his desired result—that he will take part in the appeal—but hasn’t yet reverse-engineered the reasons that might justify (or at least provide useful camouflage for) that result. Under that alternative, Reinhardt raced to issue his denial order because he saw it as in his interests to do so. Among other things, the prompt denial would squelch undesirable media attention to the controversy, and it would spare plaintiffs’ lawyers the awkward decision to remain silent on the disqualification motion or to offer their own unhelpful account of their interactions with Reinhardt’s wife. Further, Reinhardt’s promise of a future memorandum setting forth his reasons would discourage legal ethicists from weighing in until after he has delivered on his promise.
If Reinhardt was just blowing smoke, don’t expect to see his memorandum of reasons any time soon. Instead, any such memorandum, if it is ever issued (and I wouldn’t dismiss the possibility that it never will be), might well be issued at the same time as the panel’s merits ruling. That way, the controversy over the merits ruling would drown out attention to any deficiencies in his memorandum, and anyone finding fault with his memorandum would be disparaged and dismissed as a sore loser.
Which alternative would I bet on? Well, I won’t entirely dismiss the first (though I’m very skeptical that any memorandum that Reinhardt produces will succeed in justifying his decision to take part in the case). But I’d bet on the second. My read of Reinhardt as a judge was formed by my regular exposure to his opinions when I was a Ninth Circuit law clerk 25 years ago and has been reinforced by his dreadful judicial performance since then. Bottom line: Don’t trust him on anything.