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

Ah, Reinhardt

November 29, 2010 · Posted in The Capitol · Comment 

(Orin Kerr)

As Dale notes below, the randomly chosen panel of the Ninth Circuit that will be hearing the Prop 8 case includes Steven Reinhardt, the most-reversed Court of Appeals judge in the land. I’m reminded of this famous line from Casablanca:

Michael Hawkins is also on the panel, and in my experience he pretty reliably votes with Reinhardt. So as Dale says, this is good news for opponents of Prop 8 at least in the short term.

At the same time, I would think it is bad news for opponents of Prop 8 in the long term. It goes without saying that Reinhardt will vote the liberal way, and he’ll likely have Hawkins with him. But the word “Reinhardt” is radioactive at 1 First Street. Reinhardt writes like there is no Supreme Court, and as a result his opinions have a remarkable ability to annoy the Justices. In return, the Supreme Court loves to reverse Reinhardt. They love to reverse opinions he signs, and they love to reverse opinions he participates in. So the fact that he’ll likely be involved in the panel decision probably hurts opponents of Prop 8 in the long run.

The Volokh Conspiracy

Reinhardt, Rogoff, and Causation

August 12, 2010 · Posted in The Capitol · Comment 

If the latest from Carmen Reinhardt and Kenneth Rogoff is intended as a response to Paul Krugman’s criticisms then I don’t think the dial is going to move. Krugman’s strongest point is the one about timing and causation—is high debt:GDP ratio associated with slow growth because debt slows growth, or because slow growth of the denominator fules a higher ratio? They concede “that severe economic downturns, irrespective whether their origins was a financial crisis or not, will, in most instances, lead to higher debt/GDP levels contemporaneously and or with a lag.”

Then they kind of punt (emphasis in original):

A unilateral causal pattern from growth to debt, however, does not accord with the evidence. Public debt surges are associated with a higher incidence of debt crises. This temporal pattern is analysed in Reinhart and Rogoff (2010b) and in the accompanying country-by-country analyses cited therein. In the current context, even a cursory reading of the recent turmoil in Greece and other European countries can be importantly traced to the adverse impacts of high levels of government debt (or potentially guaranteed debt) on county risk and economic outcomes. At a very basic level, a high public debt burden implies higher future taxes (inflation is also a tax) or lower future government spending, if the government is expected to repay its debts.

That’s true, but this suggests a regress. If financial markets lose confidence in a country’s ability to pay its debts, that creates problems. And expectations of future increases in debt:GDP ratio can lead to loss of confidence. But is that driven by the numerator or the denominator?

I think common sense dictates that there’s only so much one can say about the merits of “debt” in the abstract. Initially conditions matter. If one of the least-taxed rich countries in the world goes into debt to cut taxes, nobody’s going to doubt that taxes could be raised back up if necessary. by contrast if the most-taxed country on earth (Denmark, I believe) raises spending, people may legitimately wonder if it’s even possible to raise much more revenue. Beyond that, it depends what you’re buying and at what interest rate you’re buying it. Debt that mobilizes genuinely idle resources amidst a severe downturn seems very valuable to me. Debt that somewhat increases the incomes of highly skilled engineers in ordert to induce them to build military robots rather than civilian ones does hurts you on the numerator and the denominator. In general, the American debate needs to focus less on how much we’re spending than on what we’re buying.

Matthew Yglesias

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