Anti-Gay Groups Would Force Justice Thomas To Recuse From Health Care Litigation

December 3, 2010 · Posted in The Capitol · Comments Off 

Earlier this week, the Ninth Circuit announced the three judge panel which will hear the appeal of Judge Vaughn Walker’s decision striking down Prop 8. The panel includes a judge who is widely expected to affirm Walker’s decision — Judge Stephen Reinhardt.  Almost immediately, anti-gay groups responded to this announcement by demanding that Reinhardt recuse himself because of his wife’s role with the ACLU.  Reinhardt’s wife, Ramona Ripston, heads the ACLU of Southern California, which has been an outspoken opponent of Prop 8 and which praised Judge Walker’s decision.

Yet, the right might want to think a little harder about one of the arguments the anti-gay groups raised in their motion seeking Reinhardt’s recusal (a motion which he has since denied), since the same argument would apply to more famous judge in an even more famous lawsuit:

Judge Reinhardt must recuse because “his spouse … [i]s known by the judge to have an interest that could be substantially affected by the outcome of the proceeding.” Ms. Ripston is “responsible for all phases of [ACLU/SC’s] programs,” and under her direction the organization has put Proposition 8 “at the forefront of [its] civil-rights agenda, sparing no effort to defeat Prop. 8 [and] challenge its passage,” Most importantly, as we have explained, the ACLU/SC’s effort to invalidate Proposition 8 has extended to advocating that result in this very case.

It is thus plain that Ms. Ripston has an avowed interest in seeing Proposition 8 invalidated, an interest that unquestionably will be substantially affected by the outcome of this proceeding. Because this is so, it is immaterial whether or not Ms. Ripston’s interest is financial, and Judge Reinhardt must recuse.

Judge Reinhardt, of course, is not the only judge whose wife is an outspoken supporter of a case that was making its way to her husband’s court.  Supreme Court spouse Ginni Thomas leads a Tea Party group called Liberty Central (although there are mixed reports suggesting that she may step down), which vigorously opposes the Affordable Care Act.  She even initially signed onto a memo calling the Act unconstitutional, although her name was later pulled from that memo following news reports that she was raising ethical issues for her husband.  If the mere fact that Ripston endorsed a certain outcome in the Prop 8 case requires her husband’s recusal from that case — as the anti-gay groups claim — then Justice Thomas has no business coming within ten feet of the Affordable Care Act litigation.

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Judge Reinhardt’s Order Denying the Motion That Asked Him to Recuse Himself

December 2, 2010 · Posted in The Capitol · Comments Off 

(Eugene Volokh)

Judge Reinhardt has issued an order denying the motion that asked him to recuse himself; the order promises a longer explanation to come. For the text, see the update to my original post. If you’d like to comment, please comment on the original post.

The Volokh Conspiracy

Motion Asking Judge Reinhardt to Recuse Himself from the Prop. 8 Case

December 2, 2010 · Posted in The Capitol · Comments Off 

(Eugene Volokh)

Orin blogged yesterday about the suggestion that Judge Reinhardt recuse himself from the Prop. 8 case, so I thought it would be helpful to post the motion that was just filed with such a request. Here’s the Statement from the start of the motion (with most citations omitted), which summarizes the argument, though please read the whole thing if you’re interested in the issue:

On November 28, 2010, this Court identified Circuit Judges Reinhardt, Hawkins, and N.R. Smith as the members of the panel assigned to this case. Judge Reinhardt is married to Ramona Ripston, the long-time Executive Director of the ACLU of Southern California (hereinafter, “ACLU/SC”). As Executive Director, Ms. Ripston is “responsible for all phases of the organization’s programs, including litigation, lobbying and education.” Under Ms. Ripston’s leadership, “ACLU/SC has taken a lead role” in what it calls “the fight to end marriage discrimination” in California. ACLU/SC 2007–2008 Annual Report 24, at ACLU/SC represented several same-sex couples and organizations in In re Marriage Cases, in which the California Supreme Court held that California’s pre-Proposition 8 statutory definition of marriage as the union of a man and a woman violated the State Constitution.

Following that decision, ACLU/SC put Proposition 8 “at the forefront of [its] civil-rights agenda, sparing no effort to defeat Prop. 8 [and] challenge its passage.” ACLU/SC 2008–2009 Annual Report 8, at After Proposition 8’s passage ACLU/SC represented petitioners before the California Supreme Court in Strauss v. Horton, the unsuccessful state-law challenge to the validity of Proposition 8. The same day the California Supreme Court issued its decision in Strauss, Ms. Ripston issued a public statement on behalf of ACLU/SC, vowing that “[a] renewed effort to overturn Proposition 8 begins today.” Ms. Ripston later signed a letter on behalf of ACLU/SC explaining that as part of that effort, “LGBT people and our closest allies are first going to have to talk to close friends and family about … why this fight [for same-sex marriage] matters. Even if those people are already on our side, we need to talk to them to convince them to join the fight.”

ACLU/SC has taken an active role in this litigation. It appears that Plaintiffs’ attorneys engaged in “confidential discussions” with Ms. Ripston and ACLU/SC’s legal director before filing this lawsuit. See Chuleenan Svetvilas, Challenging Prop 8: The Hidden Story, CALIFORNIA LAWYER, Jan. 2010, at And ACLU/SC has been actively involved in this very case. Indeed, it represented, as counsel in the court below, parties seeking to intervene as plaintiffs, see Our Family Coalition et al. Motion to Intervene as Party Plaintiffs, Doc. No. 79 at 2 (July 8, 2009), and amici urging the court to decide the case in favor of Plaintiffs and to rule that Proposition 8 is unconstitutional. See Brief of Amici Curiae American Civil Liberties Union et al., Doc. No. 62 at 2 (June 25, 2009); Brief of Amici Curiae American Civil Liberties Union et al., Doc. No. 552 at 2 (Feb. 3, 2010). [footnote 3]

[Footnote 3:] Indeed, in the accompanying motions for leave to file these amicus briefs, the statement of amici interest specifically lists ACLU/SC as an affiliate of an amicus curiae. See Motion for Leave to File Brief of Amici Curiae American Civil Liberties Union et al., Doc. No. 61 at 3 (June 25, 2009) (identifying “the ACLU Foundation of Southern California” as one of “the three California affiliates of the ACLU”); Motion for Leave to File Brief of Amici Curiae American Civil Liberties Union et al., Doc. No. 551 at 3 (Feb. 3, 2010) (same).

When the district court issued the ruling under review in this Court, the ACLU issued a public statement praising the decision and emphasizing that the ACLU, along with two other groups, had “filed two friend-of-the-court briefs in the case supporting the argument that Proposition 8 is unconstitutional.” The press release quoted Ms. Ripston as “rejoic[ing]” in the decision striking down Proposition 8, asserting that it “affirms that in America we don’t treat people differently based on their sexual orientation.” Ms. Ripston’s statement was reported in the national media. At the same time, Ms. Ripston stated that the district court’s ruling was not the end of the matter, emphasizing that “it’s a long road ahead until final victory.” Specifically, as one of her colleagues put it in the same public statement, “[i]n order to give this case the best possible chance of success as it moves through the appeals courts, we need to show that America is ready for same-sex couples to marry by continuing to seek marriage and other relationship protections in states across the country” (emphasis added).

Naturally, if there’s a response filed (or some rebuttal published by someone who is not a party), I’d be delighted to link to it as well. I don’t have a fixed view on what the right result is, since I’m not an expert on this aspect of judicial recusal law, but I thought it was worth linking to the legal argument.

The Volokh Conspiracy

CBS Should Recuse Itself From All Supreme Court Interviews

November 30, 2010 · Posted in The Capitol · Comment 

60 Minutes talking to a leftist Supreme Court Justice. Blind leading the blind and both fell into the ditch.

I went into the Scott Pelley interview with retired Justice John Paul Stevens with low expectations and I was not disappointed. It was correctly mentioned that Stevens had been nominated by Gerald Ford as a moderate Republican, but eventually became the leader of the Court’s liberal wing. Something happens to people who spend too much time in DC, but that’s another story for another day.

First, the issue of the 2000 Presidential election. Pelley asked Stevens whether the recount of the Bush victory over Al Gore should’ve continued.  Predictably, Stevens said it should’ve continued. What was missing from the interview were two critical points. Pelley never asked the follow-up question; “Okay, if it should’ve continued, which standard should’ve been used?” Remember, the main issue was over how to count votes and how the various standards used led to much of the confusion. Democrats love election recounts to go as long as possible until they have enough votes to win. Anybody wish to challege my contention using the last decade of election history?

The larger issue that was also ignored in the CBS story is that Bush won virtually all the recounts done by the media. Many recounts using various standards were done by the media after the 2000 election and Bush’s margin of victory actually increased. You’ve probably not heard much about this because the activist old media still want to make Bush 2000 all about the SCOTUS choosing the POTUS. No story about the 2000 Presidential election should ignore what happened with the media recounts, but CBS did.

In fact, instead of asking him tough questions about the 2000 Presidential election, all Pelley did was pander to Stevens by agreeing that, “there were many people in this country that felt the Supreme Court stole that election for President Bush.” I always love when interviewers use the “many people feel” line to reflect their own thoughts.

Some people just can’t let Florida 2000 go, can they?

Another gem from Stevens that went unchallenged, “Part of our job is to write opinions from time to time that are not popular and you know at the time they are not going to be popular.” What? That is part of the job of a US Supreme Court Justice? Scott, could you not challenge him on that point at least? 35 years on the Bench and Stevens doesn’t know that it’s his job to uphold the Constitution, and not just try to be unpopular when it suits his fancy? What if upholding the Constitution is popular, do you just decide against the Constitution because it was time to do something unpopular?

Oh, it gets better.

CBS displayed its anger over the SCOTUS decision this year to “legislate from the bench” and “overturn 100 years of law,” as they put it, in the case involving corporations right to free speech under the First Amendment. Instead of challenging Stevens on a corporations right to free speech, he was allowed to ramble on about how important it is to make sure that corporations should not be allowed the right (the same as unions) because the Supreme Court needs to make sure it’s a “fair fight” between both sides in an election. So, a fair fight is more important than the First Amendment. Pelley held his pen in his right hand, took it to his chin and appeared to be in awe of the brilliance of somebody who seems so willing to ignore the Constitution because he wants to somehow make sure elections fit his definition of “fair.”

Hey, at least the Constitution was actually mentioned once during this interview. The only time it was mentioned was to hold the First Amendment in derision.

There is also this gem from the “extra” segments found only on the CBS web site. Stevens talks about the death penalty, which he is solidly against in any case. He justifies it this way, “That’s basically the rule that’s followed in most civilized countries,” Stevens says. Pelley would’ve been wise to counter with something like, “Your Honor, you are not called upon to judge according to the laws of other countries, but rather to uphold the Constitution, why do you look to other nation’s laws to judge what we do here in America?” or something to that effect. It must not have crossed Pelley’s mind, or perhaps he sees nothing wrong with Justices in this country basing their decisions on what other countries do. Clearly, it is not the job of any judge in America to look to foreign law when making decisions, but what do I know, I’ve never worked for 60 Minutes.

It would’ve been nice for Pelley to ask Stevens about the Kelo vs New London decision. This was the one in 2005 where Stevens basically said it was okay for government to allow a corporation to take private property from an individual using eminent domain, under the guise of increasing tax revenue. I believe the Constitution does say a few things about the right of property ownership by individuals. I guess Scott Pelley didn’t have time to get to that little ‘ol property rights issue. Stevens wrote the decision allowing one of the most egregious violations of Constitutional principles in our nation’s history to take place - sorry, we’re out of time - but …

We did find something useful in this interview—we got to see some cool video of the Justice’s locker room and we found out that Babe Ruth actually did “call the shot” on the home run in the 1932 World Series in Wrigley Field. Stevens was 12 years old at the time and at the game. He said he saw it. It’s the one decision I’ll trust him on.

Big Journalism

New Supreme Court term begins; Kagan to recuse from dozens of cases

October 4, 2010 · Posted in The Capitol · Comment 

Washington (CNN) - Noisy protests at military funerals, immigration reform and violent video games are among the issues on the Supreme Court’s docket as the high court begins its new term Monday.

The term also marks the debut of Justice Elena Kagan on the Supreme Court and the first time three women will serve on the nine-justice panel.

Roughly 52 appeals are currently on the high court’s schedule. About another two dozen are expected to be added in coming months.

But Kagan, 50, will recuse herself from at least 24 cases already on the docket. That means she will not sit in oral arguments or vote on the outcomes.

Full Story

CNN Political Ticker

Anti-Gay Conservatives Call For Gay Judges To Recuse Themselves From Marriage Cases

August 12, 2010 · Posted in The Capitol · Comment 
Prop. 8 Judge Vaughn Walker

Prop. 8 Judge Vaughn Walker

As California awaits Judge Vaughn Walker’s decision whether to indefinitely stay his opinion striking down Proposition 8, anti-gay groups are already clamouring for a do-over. In an op-ed echoing a claim by various right-wing hate groups, anti-gay law professor John Eastman claims that Judge Walker’s decision must be tossed out because of widely shared rumors that Walker is gay:

If Judge Walker is indeed in a long-term, same-sex relationship, he certainly has an “interest that could be affected substantially by the outcome of the proceeding” - he and his partner are now permitted to marry! - and that, according to Judge Walker’s own finding, has financial benefits as well. Such conflicts would have required recusal, and cannot be waived by the parties.

If the relationship does not create such a conflict, it nevertheless creates the circumstance “in which the judge’s impartiality might reasonably be questioned.” That ground for disqualification can be waived by the parties, but the judge must “disclose on the record the basis of the disqualification” and then only continue after the parties have agreed in writing to his continued involvement. No such disclosure and agreement occurred in this case.

Judge Walker’s failure to disqualify himself or at least to disclose his potentially disqualifying relationship to the parties requires that the opinion in the case be vacated and a new trial conducted before a different judge.

Eastman, however, not only misstates the law, he aligns himself with some of the most hateful arguments of the post-Jim Crow era.  As Professor Sherrilyn Ifill explains, Jim Crow supporters such as the Ku Klux Klan repeatedly argued that black judges must recuse themselves from racial justice cases, and their arguments were repeatedly struck down.

In perhaps the most famous of these cases, lawyers representing the New York law firm of Sullivan & Cromwell requested that federal district judge Constance Baker Motley recuse herself from hearing a case brought by women lawyers at the firm who charged discrimination in hiring and promotion. . . .  Motley refused to withdraw from presiding over the case, offering the now classic explanation that “if background or sex or race of each judge were, by definition, sufficient grounds for removal, no judge on this court could hear this case, or many others, by virtue of the fact that all of them were attorneys, of a sex, often with distinguished law firm or public service backgrounds.”

A year earlier, federal district judge A. Leon Higginbotham (also now deceased) refused to recuse himself from a case adjudicating the claims of African-American union members who charged that a local contractors’ union discriminated against them. . . . Judge Higginbotham argued that “[white] litigants are going to have to accept the new day where the judiciary will not be entirely white and where some black judges will adjudicate cases involving race relations.” From Texas to Illinois, other black federal judges fought off similar motions filed by defendants in civil rights cases, including one in which lawyers for the Ku Klux Klan sought to remove Judge Gabrielle McDonald from hearing a case on the grounds that she was “prejudiced against the Ku Klux Klan.”

Eastman attempts to deflect these precedents by claiming that Walker does not need to recuse himself because he is gay, but simply because he might someday wish to marry a man.  This argument, however, proves way too much.  Justice Clarence Thomas, who is openly black, may wish to stay in a hotel some day, but he is not required to recuse himself from cases challenging the ban on discrimination in public accommodations.

Moreover, the anti-gay right’s own arguments against marriage equality defeat their case against Walker’s recusal.  If anti-gay bigots are correct that same-sex marriage weakens opposite-sex marriages, then any married judge would be required to recuse themselves, or at least make a formal disclosure of their marriage, because they would have a personal stake in preventing their own divorce.

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