Bench Memos

Reinhardt’s Non-Disqualification Memorandum—Part 5

There’s no grand mystery why Judge Reinhardt, in his non-disqualification memorandum, would misrepresent Prop 8 proponents’ argument and obscure or entirely omit key facts on which they rely (see Part 1); why he would wrongly conclude that the section 455(a) test for disqualification—whether a judge’s “impartiality might reasonably be questioned”—doesn’t apply (see Part 3) and implausibly strain to root his own stated recusal policy in the narrower test under 455(b)(5) (see Part 2); and why he would absurdly construe section 455(a) to apply differently to different judges on identical sets of facts (see Part 4). Reinhardt is desperate to avoid squarely teeing up this question:

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 simple reason for Reinhardt’s desperation is that the question clearly and forcefully answers itself—and I invite anyone who is inclined to disagree to consider not only the manifold defects of Reinhardt’s memorandum but also this hypothetical.


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