Judge Reinhardt’s next big blunder in his non-disqualification memorandum comes when Reinhardt, after wrongly concluding that section 455(a) doesn’t apply, addresses whether it would require his disqualification if it did apply. (See pages 13-14.)
As I understand Reinhardt’s argument, the “facts” that he maintains that a reasonable person would have to consider in determining whether Reinhardt’s impartiality “might reasonably be questioned” under section 455(a) would have to include (1) that Reinhardt does “not in any way condition [his] opinions on the positions [his wife] takes regarding any issues,” and (2) a “familiar[ity] with [Reinhardt’s] judicial record throughout [his] career.”
Reinhardt’s position is simply absurd. Under his view, the determination whether a judge’s impartiality “might reasonably be questioned” based on his spouse’s activities cannot be based on the publicly knowable facts but would instead depend on an intimate assessment of the marital relationship:* Is Judge X more influenced by his wife’s opinions than Judge Y is influenced by her husband’s? If so, then (under Reinhardt’s analysis) the identical set of spousal activities could require Judge X’s disqualification but not Judge Y’s.
Likewise, Reinhardt’s claim that the hypothetical reasonable person making the assessment under section 455(a) must be “familiar with my judicial record throughout my career” ridiculously suggests that otherwise identical sets of facts could require Judge X’s disqualification but not Judge Y’s if their judicial records differ in some undefined and indeterminate way. Or perhaps Reinhardt is really just arguing that any reasonable person would know from his judicial record that he’s already so biased in favor of the cause of same-sex marriage that his wife’s views couldn’t possibly have any influence on him. But he cites no precedent for the extraordinary proposition that section 455(a) will apply differently to different judges based on their established ideological biases.
* Reinhardt isn’t claiming that section 455(a) somehow requires that a reasonable person presume that a spouse’s activities or views never will influence a judge (and such a claim would be at war with human experience as well as with various of the bases for disqualification under 455(b)(5)). He is making a factual claim about his wife’s non-influence on him: “I do not condition my opinions on the positions she takes regarding any issues.” Whether or not that claim is correct, it cannot possibly be something that the reasonable person is expected to assess in determining whether a judge’s impartiality “might reasonably be questioned.”