As I summarized in Part 2, Judge Reinhardt determined in his non-disqualification memorandum that section 455(a), which requires that a judge disqualify himself “in any proceeding in which his impartiality might reasonably be questioned,” simply doesn’t come into play because “none of § 455(b)(5)’s criteria for recusal based on a family member’s involvement in a case applies here.”
Reinhardt’s determination rests on his expansive reading of a brief passage in the Supreme Court’s 1994 decision in Liteky v. United States. But his expansive reading is inconsistent with the reasoning of Liteky itself. It’s also a reading that all five members of the Liteky majority contemporaneously rejected. And the Judicial Conference of the United States, in its Code of Conduct for United States Judges (which closely tracks section 455), has also rejected that reading.
At issue in Liteky was the interplay between section 455(a) and section 455(b)(1), which provides that a judge shall recuse himself where “he has a personal bias or prejudice concerning a party.” It had long been settled that section 455(b)(1) is limited by what is called the “extrajudicial source” doctrine. What that ungainly jargon means (to borrow from the majority opinion) is that a judge need not recuse himself under 455(b)(1) for bias or prejudice “properly and necessarily acquired in the course of” a trial (as, for example, from dealing with a defendant who “has been shown to be a thoroughly reprehensible person”). The defendants in Liteky had moved to disqualify the trial judge under section 455(a) for allegedly biased behavior, all of which involved routine judicial proceedings, and the question for the Court was whether section 455(a) was also limited by the extrajudicial-source doctrine. All nine justices agreed that it was, but they divided 5-4 on their reasoning.
In his majority opinion, in a passage that Reinhardt quotes from, Justice Scalia states:
As we have described, § 455(a) expands the protection of § 455(b), but duplicates some of its protection as well — not only with regard to bias and prejudice but also with regard to interest and relationship. Within the area of overlap, it is unreasonable to interpret § 455(a) (unless the language requires it) as implicitly eliminating a limitation explicitly set forth in § 455(b). It would obviously be wrong, for example, to hold that “impartiality could reasonably be questioned” simply because one of the parties is in the fourth degree of relationship to the judge. Section 455(b)(5), which addresses the matter of relationship specifically, ends the disability at the third degree of relationship, and that should obviously govern for purposes of § 455(a) as well.
As I understand his reasoning, Reinhardt reads the four subparts of section 455(b)(5) as setting forth an exhaustive list—an explicit “limitation,” within the meaning of Liteky—of the circumstances in which a relative’s involvement in a proceeding requires the judge’s recusal. Based on that reading (and on what he sees as the absence of any “special factors or unforeseeable circumstances”), he concludes that Prop 8 proponents have no available claim for disqualification under section 455(a).
Reinhardt’s reasoning is badly flawed, for several reasons:
1. The Liteky discussion that Reinhardt relies on is limited to a situation in which all of the allegedly disqualifying conduct was within the scope of 455(b)(1). Thus, for example, when the Court states that it “would obviously be wrong … to hold that ‘impartiality could reasonably be questioned’ simply because one of the parties is in the fourth degree of relationship to the judge” (emphasis added), it is clearly leaving open the possibility that other facts, in combination with, say, a distant relative’s “acting as a lawyer in the proceeding” (455(b)(5)(ii)), could require disqualification under section 455(a).
Here, similarly, Prop 8 proponents have presented a slew of facts beyond Ripston’s alleged “interest” under section 455(b)(5)(iii)—e.g., her public celebration of Judge Walker’s ruling, her confidential consultation with plaintiffs’ counsel, and her organization’s self-proclaimed “lead role” in combating Proposition 8. The totality of those facts, in combination with the facts alleging giving rise to Ripston’s “interest,” must therefore be addressed under section 455(a).
2. On November 1, 1993—two days before the oral argument in Liteky—seven justices of the Supreme Court, including all five members of the Liteky majority, issued a joint Statement of Recusal Policy* that expressly reasons that section 455(a) remains available as a “less specific” basis of recusal when a relative covered by 455(b)(5) previously acted, but is no longer acting, as a lawyer in the proceeding. In other words, these justices determined that section 455(a) continues to apply even when all of the allegedly disqualifying conduct is addressed by a subpart of 455(b)(5).
In Liteky, neither the majority opinion nor the opinion concurring in the judgment (which disagreed with the majority’s discussion of the interplay of 455(a) and 455(b) opinion) argued that there was any tension between the Liteky holding and the Statement of Recusal Policy. (Justice Kennedy, the author of the opinion concurring in the judgment, was also one of the signatories to the Statement of Recusal Policy.) Nor has that Statement of Recusal Policy been modified in the intervening years. Indeed, Chief Justice Roberts adopted that same policy in September 2005.
3. The Code of Conduct for United States Judges, adopted by the Judicial Conference of the United States, has a disqualification provision—Canon 3.C—that is virtually identical to section 455. (Even if there are any relevant differences between Canon 3.C and section 455, Reinhardt is subject to both.) The Judicial Conference’s official commentary on the provision that parallels a section 455(b)(5) subpart expressly states that even if conduct falling under that section doesn’t require disqualification, disqualification might separately be required under the 455(a) analogue “if ‘the judge’s impartiality might reasonably be questioned.’” The Committee on Codes of Conduct, in an opinion as recent as June 2009 (Advisory Opinion No. 38), cites that commentary. In the nearly two decades since Liteky, the Judicial Conference has never determined that Liteky requires a different conclusion.
* From what I can tell, this document has not previously been available online. My thanks to the Supreme Court’s public information office for providing me the copy that I have posted.
Addendum—One further observation: When Reinhardt immediately denied Prop 8 proponents’ motion last month, he took the position that the section 455(a) standard did govern: “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.’” His reversal on this central issue provides further evidence that Reinhardt had simply determined his desired result without actually having responsibly reasoned his way to it.