Bench Memos

Is Reinhardt Just Blowing Smoke?—Two Weeks and Counting

Two weeks ago Thirteen days ago, Ninth Circuit judge Stephen Reinhardt immediately denied the motion to disqualify himself from hearing the Prop 8 appeal—a motion based on his wife’s involvement (see here, here, and here) in the very case. In his cursory order, Reinhardt stated that he was “certain” that “a reasonable person with knowledge of all the facts would [not] conclude that [my] impartiality might reasonably be questioned.” But Reinhardt gave not a hint of the reasons that would justify his conclusion, instead promising that he would provide such reasons “in a memorandum to be filed in due course.”

As I explained, I strongly suspected that Reinhardt was just blowing smoke and that he had not in fact worked his way to his conclusion. Indeed, had he done so, it should have been a simple matter for him to set forth his reasons—and he should have seen the strong public interest in promptly dispelling the ethical cloud over his participation. In the meantime, a liberal commentator who opposes Prop 8 has called for Reinhardt’s disqualification, and I’m not aware of any legal ethicist who has defended Reinhardt’s continued involvement.

Every passing day makes it more likely that Reinhardt raced to issue his denial order merely because he saw it as in his interests to do so (for the reasons explained in point 2 of my previous post).


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