Bench Memos

Consider This Hypothetical

In discerning and applying the principles that govern judicial disqualification, it’s important to test those principles against one’s political preferences. So I invite those who don’t believe that Judge Reinhardt’s impartiality in the Prop 8 appeal “might reasonably be questioned”—as well as those who do believe it might be—to consider this hypothetical:

It’s 2030, ten years after Roe v. Wade has been overturned and abortion policy has been restored to the democratic processes. Pro-life groups, dissatisfied with the “pro-choice” abortion laws that many states have enacted, decide to fight in the courts for a constitutional “right to life”—for a ruling, in other words, that the Constitution forbids the states from enacting laws permitting abortion. A federal district judge in Ohio adopts that very ruling in striking down Ohio’s laws permitting abortion. The state then appeals that ruling. 

When the three-judge appellate panel is selected, here’s what you learn about one of the judges, Judge Steven Wright:

Judge Wright’s wife is Lenora Lipston, the longtime head of Ohioans for Life, the leading pro-life organization in Ohio. Lipston is responsible for all phases of the operations of Ohioans for Life, including litigation. Under Lipston’s direction, Ohioans for Life has touted its “lead role” in “fighting to end abortion” in Ohio.

The lawyers challenging Ohio’s abortion laws consulted with Lipston before bringing their challenge in order to draw on her insights and see if she would be supportive. During the district-court proceedings in this very case, Ohioans for Life, serving as counsel to its national parent organization, the National Right to Life Committee, submitted amicus briefs in support of plaintiffs that urged the court to recognize a constitutional right to life for the unborn.

When the district court issued its decision holding that Ohio’s laws permitting abortion violate a constitutional right to life, Lipston publicly celebrated the decision:

This decision affirms that in America, we don’t deprive human beings of their right to life simply because they haven’t been born yet. We rejoice at today’s decision but there’s a long road ahead toward establishing true protection for the unborn.

Judge Wright is known to have a longstanding practice of disqualifying himself from any case in which Ohioans for Life has been involved, but he declines to follow that practice in this case.

Be honest now: Would you think that Judge Wright’s impartiality in the case on appeal might reasonably be questioned?

And what would you think of the fairmindedness of someone who maintained that he was certain that no reasonable person could question Wright’s impartiality?


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