Bench Memos

Misguided Amicus Brief Defending Prop 8 Non-Recusals—Part 1

In the Prop 8 case, an amicus brief filed on behalf of former New York chief justice Judith Kaye, law professor Stephen Gillers, and others undertakes to refute the case that I made in the last quarter of my amicus brief that both Ninth Circuit judge Stephen Reinhardt and trial judge Vaughn Walker improperly failed to recuse themselves. (I don’t yet have an online link to the Kaye/Gillers brief; I’ll add it in when I find it.) The Kaye/Gillers brief commits critical errors and evasions.

Let’s begin with the Kaye/Gillers brief’s defense of Reinhardt’s non-recusal (which I think is the first time that I’ve seen anyone other than Reinhardt defend his non-recusal). As I spelled out, Reinhardt’s wife, Ramona Ripston engaged in confidential discussions with plaintiffs’ lawyers in this very case about their decision to file their lawsuit; she authorized the ACLU affiliate that she led to file amicus briefs supporting plaintiffs in the trial proceedings in this very case (briefs that advocated the same narrower theory of Prop 8’s purported invalidity that, surprise!, Reinhardt ultimately adopted); and she publicly celebrated the trial-court ruling in this very case that was to be reviewed by the Ninth Circuit.

Rather than directly confront these undisputed facts, the Kaye/Gillers brief dodges and obscures them (just as Reinhardt himself did). Its purported summary of my position asserts that Ripston “held a non-legal leadership position” with the ACLU affiliate (p. 30), and it also asserts that no one “allege[s] that Ms. Ripston authored or was even consulted on the briefs” (p. 33 (emphasis added)). But, as the ACLU report I quoted made clear, Ripston was “responsible for all phases of the organization’s programs, including litigation.” Her leadership position, in other words, extended to legal matters, “including litigation,” and it was therefore her responsibility to authorize the filing of the amicus briefs—a responsibility that she could not have carried out without “even [being] consulted.”

The Kaye/Gillers brief’s purported summary of my position also states that Ripston “had peripheral, early interaction in what ultimately became this case.” I don’t see what is “peripheral” about consulting with plaintiffs’ lawyers on whether to file the lawsuit. Also, this purported summary of my position completely omits mention of Ripston’s authorization of the amicus briefs that her ACLU brief and of her public celebration of the trial-court ruling. (The Kaye/Gillers brief later acknowledges, even as it struggles to minimize, the former (p. 33), but only makes the most oblique reference to the latter.)

My case for Reinhardt’s disqualification rests squarely on 28 U.S.C. § 455(a), which provides that a judge shall disqualify himself from “any proceeding in which his impartiality might reasonably be questioned.” In short:

Might a judge’s impartiality reasonably be questioned when that judge takes part in reviewing the decision in a case in which his wife consulted with plaintiffs’ counsel about the very decision to file the lawsuit, in which his wife 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 in which his wife publicly celebrated the very ruling that her husband is now reviewing?

The question clearly and forcefully answers itself “yes” (and I invite anyone inclined to disagree to consider this hypothetical). Because there is no serious case to the contrary, the Kaye/Gillers brief hastily passes over section 455(a) and instead falsely contends that my case for Reinhardt’s disqualification rests on subparts of section 455(b). But I discussed those subparts only to refute how Reinhardt misused them to narrow the application of section 455(a). The Kaye/Gillers brief simply fails to engage my analysis.


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