Ninth Circuit Oral Arguments on Prop 8-Related Issues

by Ed Whelan

Last week the same Ninth Circuit panel that is deciding the merits appeal of now-retired judge Vaughn Walker’s wild ruling striking down Prop 8 heard oral argument on Prop 8 proponents’ appeals of two related orders: (1) the badly flawed order by Chief Judge Ware that denied Prop 8 proponents’ motion to vacate Walker’s anti-Prop 8 judgment on account of Walker’s failure to recuse, and (2) Ware’s brazen order unsealing the video recording of the trial.

The consensus among reporters who watched the oral arguments is, as this article puts it, that Prop 8 proponents “seemed likely to succeed” on their appeal of the video order “but made little apparent headway” on the vacatur-for-failure-to-recuse appeal. I have no reason to question that consensus, not least because, apart from a snippet or two, I haven’t watched the recordings of the two arguments.

One reason that I haven’t watched the recordings is that my taste for absurdist theater is limited, and there could be little more absurd than Ninth Circuit judge Stephen Reinhardt’s pondering whether Judge Walker should have recused himself. It was just about a year ago, you may recall, that Reinhardt declined to recuse himself from the Prop 8 appeal, notwithstanding the fact that his wife, Ramona Ripston, consulted with plaintiffs’ counsel about the very decision to file the lawsuit, that she authorized the ideological organization that she heads—and that has vaunted its “lead role” on the broader ideological cause at issue—to file amicus briefs supporting plaintiffs in the trial proceedings, and that she publicly celebrated the very ruling that he is now reviewing. (Links to my multi-part critique of Reinhardt’s utterly unpersuasive non-recusal order are here.) So far as I’m aware, no legal ethicist has defended Reinhardt’s non-recusal.

On the core merits appeal, it’s entirely predictable that Judge Reinhardt, together with Clinton appointee Michael Hawkins, will vote to affirm Walker’s anti-Prop 8 judgment. The good news is that the case for Reinhardt’s recusal is so compelling that it’s difficult to imagine that the Supreme Court will let the panel decision stand: Without needing to get to the merits, the Court could simply vacate the decision. (Ditto for Walker’s underlying ruling.) But if the Walker/Reinhardt travesty on Prop 8 somehow survives, then, as Charles Cooper, the lead lawyer for Prop 8 proponents, warned in his impassioned closing remarks in last week’s argument on the motion to vacate, it indeed “will be a signal and dark day in American jurisprudence.”