Bench Memos

NRO’s home for judicial news and analysis.

Reinhardt’s Non-Disqualification Memorandum—Part 2


Judge Reinhardt’s conclusion that he need not disqualify himself from the Prop 8 appeal turns heavily on his interpretation of two of the statutory disqualification provisions and of the interplay between those provisions. One provision is section 455(a) (of Title 28), which states:

Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

The other provision is section 455(b)(5)(iii), which I reproduce here in the broader context of 455(b)(5) (italics added):

(b) He [i.e., any justice, judge, or magistrate judge of the United States] shall also disqualify himself in the following circumstances: … [Where]

(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

(i) Is a party to the proceeding, or an officer, director, or trustee of a party;

(ii) Is acting as a lawyer in the proceeding;

(iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;

(iv) Is to the judge’s knowledge likely to be a material witness in the proceeding.

Here’s a quick summary of Reinhardt’s core legal analysis (from pages 7 to 13 of his memorandum):

1. Recusal is not required under section 455(b)(5). The ACLU-SC’s “limited participation in the district court does not endow my wife or the ACLU-SC with any ‘interest that could be substantially affected by the outcome of the proceeding.’” “At best it could be said that through the filings the ACLU/SC has made clear its position regarding how this case should be decided.” “[T]he suggestion that either my wife or the ACLU/SC could benefit in any tangible way from this court’s ultimate decision simply because the ACLU/SC signed on to peripheral lower court filings is highly ‘unreasonable and speculative.’”

2. Recusal is also not required under section 455(a). “It is significant that none of § 455(b)(5)’s criteria for recusal based on a family member’s involvement in a case applies here. As the Supreme Court has explained, ‘it is unreasonable to interpret § 455(a) (unless the language requires it) as implicitly eliminating a limitation explicitly set forth in § 455(b).’” Liteky v. United States (1994). Perhaps there could be “special factors or unforeseeable circumstances that might render § 455(a) applicable where Congress, in adopting the limitations of § 455(b)(5), failed to consider certain types of actions or where new practices have arisen due to changes in the practice of law or other societal developments.” But there are no such factors or circumstances here.

Before addressing Reinhardt’s analysis head-on (in my next post, probably tomorrow), I’d like to highlight a striking anomaly: Reinhardt can’t provide a coherent justification for his own stated recusal policy under his reading of sections 455(a) and 455(b)(5). As Reinhardt describes that policy: “I do not participate in any actions by this court when the organization of which my wife is the Executive Director makes any appearance or files any brief, amicus or otherwise, before this court.” Further, Reinhardt emphasizes that it is “important” that “judges not recuse themselves unless required to do so.”

In a footnote (note 5 on p. 10), Reinhardt seems to suggest that he adopted his stated recusal policy pursuant to section 455(b)(5):

Had the ACLU/SC filed a brief in this court, it could conceivably be argued that the organization had an interest in the outcome of our deliberations, on the theory that it could then seek to claim a portion of the credit for any favorable decision this court issued in order to attempt to raise funds or solicit new members. Although I find such arguments highly questionable, in order to avoid any possible claim of conflict of interest I have, as stated above, always recused myself from cases in which the ACLU/SC participated in any way in this court, including filing a brief, amicus or otherwise.

But Reinhardt isn’t maintaining that he is “required” to recuse himself in all Ninth Circuit cases in which his wife’s organizations participates. On the contrary, he finds “highly questionable” the proposition that his wife has an “interest” in a case merely by virtue of her organization’s having filed a brief on appeal. Further, he indicates that he has adopted an overly broad recusal policy “in order to avoid any possible claim of conflict of interest.”

But, of course, it’s always “possible” for someone to make a wholly unreasonable claim of conflict of interest. So in context, it seems clear that what Reinhardt means by “any possible claim” is really “any reasonable claim,” whether or not actually meritorious.

What this suggests—and what Reinhardt seems eager to obscure—is that his stated recusal policy actually implements section 455(a), not section 455(b)(5), as Reinhardt has effectively made the sound judgment that “his impartiality might reasonably be questioned” in cases in which his wife’s organization participates. But the interpretation of section 455(a) and of its interplay with section 455(b)(5) that Reinhardt offers in his non-disqualification memorandum would not permit him to rely on section 455(a).


Subscribe to National Review