Given the scope and breadth of political interest involved, it comes as no surprise that the naming of 9th Circuit Court of Appeals Judge Stephen Reinhardt to the panel of three that will decide the constitutionality of California’s Proposition 8 has resulted in a near instantaneous call for his recusal.

At Bench Memos,  Ed Whelan first explains, in passive-aggressive fashion, all the negatives that shouldn’t disqualify this “arch-activist” judge:

One predicate fact, insufficient in itself, is that Reinhardt is the husband of Ramona Ripston, the longtime executive director of the ACLU of Southern California. I need not and do not argue here that the corporate affiliation between the ACLU of Southern California and the ACLU Foundation of Northern California, which has filed an amicus brief on appeal, requires Reinhardt’s disqualification. [Update: But see this follow-up post, which discusses the role of the ACLU of Southern California in the district-court proceedings in this very case.] Nor do I argue that Ripston’s financial contribution to the No on 8 campaign (which may or may not have come out of joint funds) compels Reinhardt’s disqualification.

Where’s barefoot and pregnant when you need it?  Whelan then proceeds with the coup de grâce.

Rather, I rely on the fact, reported months ago in this California Lawyer article, that Ripston consulted with the plaintiffs’ lawyers about the decision to bring this very case:

Earlier that month [May 2009], [Theodore] Boutrous [of Gibson, Dunn & Crutcher], [Chad] Griffin [board president of the American Foundation for Equal Rights, the group sponsoring the lawsuit], and [AFER board member Bruce] Cohen had opened confidential discussions with [Lambda Legal’s Jennifer] Pizer and Jon Davidson, Lambda’s legal director; Ramona Ripston, executive director of the ACLU of Southern California; and Mark Rosenbaum, its legal director.

Mandatory recusal is one thing, but “soft” recusal, where the determination is left to the judge, is a minefield.

The Code of Conduct for United States Judges requires that a judge “disqualify himself … in a proceeding in which the judge’s impartiality might reasonably be questioned.” How is it possible that Reinhardt’s impartiality in this case couldn’t reasonably be questioned when his wife took part in confidential discussions with plaintiffs’ lawyers over whether they should pursue the case? And, no, it’s no answer to say that Reinhardt is already so biased in favor of plaintiffs that his wife’s role couldn’t make a difference.

In tit-for-tat fashion, the easy answer is to point to Ginny Thomas, Clarence’s wife, who has become the very vocal darling of the tea party.  While few would argue that Justice Thomas needs to consider Ginny’s view in order to decide whether to snuggle up with Antonin Scalia, this fails to address the question of whether Ramona Ripston’s involvement, whatever that may be (which Whelan duly notes) taints Judge Reinhardt in a way that should compel him to recuse himself.

Soft recusal raises the specter less of actual impartiality, and more the appearance of partiality.  If the public believes that a judge was influenced not by the law and argument, but by outside influences, then the decision will fail to be given the respect necessary to maintain the integrity of the least dangerous branch.  Lose the public’s respect and the legitimacy of the system falls.  Since there’s little chance of the judiciary getting its own army to enforce its rulings, this could prove problematic.

Historically, we pretend that judges are neutral.  It’s among the many legal fictions that allow our society to function.  Even though we know it’s merely a fiction, there still remains some weird, naive belief that when someone walks into a courtroom, they will see a benign person wearing black, intensively focused on the matter at hand and willing to listen, consider and rule in a way that might be different than what passes through their heads as they drink their morning coffee and read the newspaper. 

And sometimes, that’s exactly what happens.

Impartiality, the ability to set aside our personal view of the world, right and wrong, sensible and stupid, and hear an argument on the merits as if we’ve never had a thought in our head before, is both incredibly difficult and the sine qua non of a good judge.  This is how every case should be judged, and it’s most assuredly not. 

Too many judges, particularly those who have spent a bit too long in the trenches and wonder why they didn’t become doctors like their mother suggested, grow hostile, terse and bizarrely presumptive.  They know it all, heard it all, just can’t bear to hear it again from you.  And their demeanor in letting you know is anything but judicial.  Judge Judy has clones.

But it’s absurd to suggest, as Whelan does, that Judge Reinhardt’s impartiality is compromised by his wife, any more than it is that Justice Thomas’ partiality is compromised by his.  Putting side the observation that people can disagree with a spouse on occasion, or that people tend to marry people with whom they share a similarity of views, the argument still fails. 

Judges are inherently subject to myriad influences outside the courtroom, from their mothers to their campaign contributors to the party leaders who support their job application.  Judges sitting on criminal matters routinely promote their support from police unions and prosecutors, often adding their own two cents about how they’ll be tough on crime and lock people away forever to protect the public.  This is an overt plea to prejudice, a promise that they will act with partiality.  Yet they are elected, despite having announced that they will perform the duties of the office in a manner favoring one side over another.  Yet calls for recusal are rarely heard, and never approved.

Whether the spouse of a judge is male or female, it would be untenable to require the spouse to take no position, hold no view, relinquish the right to speak or act in whatever way they chose.  We cannot demand that the wife of a judge be barefoot and pregnant, or at the least silent.  Judicial spouses are people, and imbued with the same right to be a person as anyone else.  The judge takes the bench, but the spouse isn’t subject to second class status as an adjunct to the judge’s appearance of impartiality.

Lastly, the fiction that allows us to believe that judges are impartial must similarly compel us to believe that they are strong enough to do their job fairly and take the heat when they get home for dinner. 

If it happens that the 9th Circuits upholds the district court’s ruling, supporters of Prop. 8 will scream that the fix was in.  The pre-emotive move to push Judge Reinhardt to recuse himself because of his wife is nothing more than an effort to get a seemingly sympathetic judge off the case.  In the scheme of things, I don’t fault anyone for trying to do what they can to pursue their agenda.

But as soft recusal arguments go, this one is facially flawed and substantively silly.  This panel can’t help but be incredibly aware of the scrutiny that its decision will receive.  The ruling must survive on the strength of its reasoning.  And even if it’s intellectually unassailable, the losing side will scream bloody murder and the cert petition will already be prepared.  Let’s just leave the spouses out of it.

Confidential to Orin Kerr:  I see that you’re unclear on  what to make of Ed Whelan’s argument.

I’ll leave it to the legal ethics experts to weigh in on this question, as I don’t know what to make of it.

I just want you to know that whenever you have these questions, feel free to come to me.  I would be happy to be Ramona Ripston to your Stephen Reinhardt.  I’m here for you.

Update:  From WSJ Law Blog, the motion has been made and decided.  To paraphrase Judge Reinhardt’s decision, “bite me.”