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Reinhardt’s Non-Disqualification Memorandum—Part 1



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A month ago, Judge Reinhardt immediately denied Prop 8 proponents’ motion to disqualify him from taking part in the Prop 8 appeal. As he put it, “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.’” (Bracketed material in original.)

Yesterday, Reinhardt issued the promised memorandum. As I will discuss in this and some follow-on posts, Reinhardt’s memorandum is an utterly unpersuasive exercise in obfuscation and gimmickry.

Let’s begin with the fact that Reinhardt, rather than squarely presenting to the trusting reader the facts and arguments that Prop 8 proponents made in their motion, misrepresents and omits inconvenient points. From their motion (pp. 6-7), here’s a succinct statement (citations omitted; emphasis in original) by Prop 8 proponents of their case for disqualification:

The facts of this case would plainly lead a reasonable person to conclude that Judge Reinhardt’s impartiality might reasonably be questioned.  His wife and the organization she leads 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; Ms. Ripston, as Executive Director of ACLU/SC, “is responsible for all phases of the organization’s programs, including litigation,”and Ms. Ripston publicly “rejoice[d]” over the district court decision that is before this Court for review, praise that was tempered only by the concern that “it’s a long road ahead until final victory.”  That “road” obviously passes through this Court, and Ms. Ripston’s colleague emphasized the importance of working “to give this case the best possible chance of success as it moves through the appeals courts.” 

Two initial observations:

1. Here is how Reinhardt mischaracterizes the recusal motion in his lead paragraph of discussion:

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.  [Emphasis added.]

Continuing his subtle but telling distortion, Reinhardt states that his “wife’s views, public or private … are of no consequence,” and he asserts that proponents’ supposed “contention that I should recuse myself due to my wife’s opinions is based upon an outmoded conception of the relationship between spouses.”

Prop 8 proponents’ motion was not based on Ramona Ripston’s subjective “beliefs” or her “private” views. It was based entirely and directly on her “public statements and actions”—especially her involvement in this very case—and the motion would be exactly the same whether or not those public statements and actions reflect her actual beliefs. In other words, Ripston’s actual beliefs are irrelevant to proponents’ motion.

It’s also not true that proponents’ recusal motion rests on “an outmoded conception of the relationship between spouses.” Indeed, the case for recusal would be exactly the same if Ramona Ripston were instead a man named Ramon who was Reinhardt’s same-sex partner. (Speaking of “outmoded,” I’m surprised to see a proud progressive commit the retrograde heterosexist offense of using this phrase: “regardless of whether the spouse or the judge is the male or the female.”)

Reinhardt’s misrepresentation may seem trivial, but he uses it to misplay the feminist card and falsely depict the recusal motion to be sexist—and thus to win favor with the reader.

2. Nowhere in his memorandum does Reinhardt acknowledge that Ripston publicly celebrated (“rejoice[d]” over) Judge Walker’s ruling against Prop 8—the very ruling under review. Nowhere does he acknowledge that the ACLU group that Ripston leads had (as proponents’ motion documents) acclaimed its own “lead role” in “the fight to end marriage discrimination” in California. Nowhere does he give the reader a fair picture of the facts that underlie proponents’ motion.

Indeed, when Reinhardt does acknowledge unwelcome facts, he races to minimize them. How about the fact that Ripston’s group filed two amicus briefs in support of plaintiffs in the district-court proceedings in this very case? Somehow Reinhardt finds it significant to point out that the briefs were filed “by six civil rights organizations and signed by the lawyer for one of the other groups,” that they were “among twenty-four amicus briefs filed in the district court on behalf of 122 organizations and private individuals,” and that Walker didn’t cite the briefs in his ruling. It’s difficult to see how those trivial facts can possibly have any bearing on the disqualification question.

Similarly, Reinhardt dismisses the fact that plaintiffs’ counsel met with Ripston and her legal director in May 2009 for confidential discussions about whether the lawsuit should be filed. Reinhardt states: “At that meeting the ACLU/SC was asked to support the lawsuit and vigorously declined. Surely, that provides no cause for my recusal.” But declaring “Surely” does not amount to an argument. Why wouldn’t a reasonable person assessing whether Reinhardt’s impartiality might reasonably be questioned find it significant that plaintiffs’ counsel consulted with Ripston about filing this very case?



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