Ed Wheelan has noted that at least one Judge appointed to a three-judge panel of the 9th Circuit to hear the Prop 8 case, should step down. Good cases can be made that Judge Walker should have stepped down (as well as the chief Judge in the Goodridge decision), so we'll have to see if this judge will follow their lead, or if he'll step down. The case against him is summarized as this...
- ... [R]eported months ago in this California Lawyer article, that Ripston [Judge Reinhardt's wife] consulted with the plaintiffs’ lawyers about the decision to bring this very case [...]
- In this case, Ripston was an officer of an entity that acted as a lawyer in the proceeding
- Judge Reinhardt’s established (and unsurprising) policy is to disqualify himself from cases involving the ACLU of Southern California [of which Ripston is a longtime executive director].
Though I should also point out there is even more interest in these connections, noted by Wheelan.
Judge Reinhardt Is Obligated To Disqualify Himself from Prop 8 AppealRe: Judge Reinhardt Is Obligated To Disqualify Himself from Prop 8 Appeal
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There's only one thing important to those beholden to leftist doctrine, that the doctrine must be propagated at all costs. Such doctrine steps all over the rule of law and, instead, becomes a law unto itself, beyond reproach.
ReplyDeleteDon't hold your breath for Reinhardt to recuse himself.
As by now I'm sure we all know, he has refused to recuse himself.
ReplyDeleteTwo issues are supposed to be decided by the panel. The first, of course, is on the question of whether Proposition 8 sponsors have standing.
The argument against standing is based on Arizonans for Official English v. Arizona, in which the Supreme Court expressed "grave doubts" about the standing of the sponsors of Arizona's law to appeal, because it was "aware of no Arizona law appointing initiative sponsors as agents of the people of Arizona to defend, in lieu of public officials, the constitutionality of initiatives made law of the State".
Now the difference between California and Arizona is that in the former, the California Supreme Court has in fact recognized the right of initiative sponsors to defend the initiatives when state officials refuse to do so. (Building Industries Association v. City of Camarillo (Cal. 1986))
The very language the Supreme Court used in expressing its doubts about standing in the Arizona case thus strongly implies that, if it is aware of a state law or state court ruling granting initiative sponsors a right to defend initiatives on appeal, it would dispel such doubts.
Still, those arguing against standing for Prop 8 sponsors argue that this right only applies at the district court level, and not in federal appeals court. That, however, raises the (admittedly more complicated) question as to whether Judge Walker should have simply dismissed the plaintiffs' case, on the grounds that it lacked the adverseness to satisfy the “case or controversy” requirement under Article III of the Constitution. And thus, by not dismissing the case, his decision should now be vacated.
I make no prediction of how the Ninth Circuit panel will rule. The question of standing, of course, has to be judged separately from the question of the merits of Walker's ruling. But judges being human and not totally free of bias, one cannot count on this.
Also, let's be frank: the California press has been working its hardest, not only to persuade the public of the wrongness of Prop 8, but, undoubtedly, to convey a message to the courts that an anti-Prop 8 outcome is what is desired.
And while supporters of neutered marriage undoubtedly would like a ruling in their favor from the Supreme Court, it seems that they do not have confidence that they would get such a ruling at the present time, under the present lineup, and thus see the prospect of this case going to the Supreme Court as too risky. Hence, they would prefer, for now, that the ruling in their favor be limited to California, and the best way for that to happen would be via a ruling against standing for Prop 8 sponsors. How much the panel judges are going to be influenced by this is anyone's guess.
In refusing to recuse himself, Reinhardt has to know that any ruling he makes adverse to Prop 8 will be viewed suspiciously, and will be a stain on the ruling if he is in the majority. It is of course possible that he will try to demonstrate his impartiality by voting for standing. Though I should say, even when a judge who's impartiality has been questioned rules against his apparent self-interest in the case, it still raises the question of whether he was ruling on the merits or because he felt he had to prove impartiality. In other words, he still should have recused himself.
Read Ed Whelan's many posts on these subjects here