Recusal as Politico-Religious Cudgel: More Thoughts on a Bad Idea

Via Jonathan Adler at Volokh (the post is Eugene Volokh's), I learn that a motion was filed by the supporters of California's Proposition 8 to recuse Judge Stephen Reinhardt, one of three judges slated to hear the appeal in Perry v. Schwarzenegger.  And Ed Whelan notes today that Judge Reinhardt has already denied the motion, his reasons to follow in a memorandum.

This little flurry got me thinking again about the recent suggestion (both by some legal academics and the N.Y. Times) that recusal decisions ought to be reviewed by other judges.  I continue to believe this to be a dreadful idea, and wanted to explore how it might operate at the federal court of appeals level (rather than, as in my previous post, at the Supreme Court).  In addition to the objections in that earlier post, I believe that this process might very well implicate judges in the public perception that they are assessing the legitimacy of each other's religious, or anti-religious, beliefs as applied to pending legal matters.

I'll use the Ninth Circuit as my example, both because this recusal motion is a Ninth Circuit creature and because, having clerked for a judge on the Ninth Circuit, Judge Jerome Farris, a wonderful man whom I'm fond of, I have a very little bit of knowledge about the dynamics of the Ninth Circuit's operations.

I expect that it will come as little surprise to readers that the Ninth Circuit is both very large numerically and very broad ideologically.  My own view is that some of the most liberal and conservative judges on the federal bench can be found on the Ninth.  Inevitably, those divisions appear in high relief from time to time, as the court confronts politically sensitive and ideologically charged legal issues.  The Proposition 8 case raises such issues.

Those who have asked Judge Reinhardt to recuse himself from the case argue that his wife, Ramona Ripston, who is the Executive Director of the ACLU of Southern California, has been intimately involved in the planning and execution of the legal opposition to Proposition 8.  The recusal statute at issue here, 28 U.S.C. section 455(a), requires a judge to recuse him or herself when the judge's "impartiality might reasonably be questioned."  Cases have interpreted the standard as setting out an objective test -- not whether "actual bias" exists but whether "the appearance" of bias exists.  (I leave aside the movants' arguments under section 455(b)).  The movants' claim is that Judge Reinhardt's impartiality might reasonably be questioned because of his wife's political views and the advantage to those views if Perry is affirmed (neither his wife, nor the ACLU, stands to gain directly from a financial point of view). 

Judge Reinhardt has decided not to recuse himself, and I have little to say about that decision -- he will give his reasons.  For what it's worth, I think it's wrong automatically to assign a judge's spouse's political views to the judge him or herself.  It's one thing if the judge's spouse stands to gain financially from a favorable outcome -- automatically treating the spouses as an economically interested unit in that sort of situation makes sense.  But it's quite another, and unwarranted as a default position, to treat the spouses as a political or ideological unit. 

Indeed, it's clear enough that the objective of the motion to recuse was to eliminate a judge who is absolutely sure to affirm, whatever his wife's political views.  Now, suppose that Judge Reinhardt's decision not to recuse himself were reviewed by a three judge panel of his peers on the Ninth Circuit.  And suppose that the panel that was drawn for the recusal review consisted of Judges O'Scannlain, Noonan, and Bybee -- all excellent judges.  But here, the fix is in.  Any decision on review that reversed Reinhardt's refusal to recuse would be immediately depicted as the work of political, and religious, conservatives in pushing out poor Judge Reinhardt.

Or imagine the reverse situation.  Suppose it had been Judge O'Scannlain who had been asked to recuse himself on the basis of the appearance of impropriety standard.  And after refusing to recuse himself, the judges assigned to the review panel (say, JJ. Reinhardt, Berzon, and Hawkins) reversed his decision.  Again, given the malleability of the standard, the suspicion that the reversal was politically motivated would, even if untrue, be irresistable. 

I also want to raise certain other ugly possibilities, though -- I should make clear -- certainly not ones which would affect any currently sitting judge on the Ninth Circuit. 

First, it may actually be the case that a reviewing judge might believe that another judge's decision not to recuse himself was motivated by a "biased" or "prejudiced" view of the merits of the case.  So that a decision by Judge A not to recuse himself might be reversed by Judge B, because Judge B thought that Judge A's religious beliefs made him "prejudiced" or "biased" -- and therefore unfit to judge -- when it came to judging the merits of a case like Perry. 

Second, one can also imagine a kind of horse-trading for votes on recusal and the merits emerging.  For example, Judge B might promise not to reverse the recusal decision of Judge A in case X (a case which matters greatly to Judge A), so long as Judge A promised (informally of course) to vote with Judge B on case Y (which matters greatly to Judge B).

One might eliminate some of these problems (though not all of them) by having the recusal review occur at the Supreme Court.  In that case, one would likely run into some of the problems I talked about in the previous post -- e.g., if there is a 5-4 recusal review vote against J. Reinhardt, and one which tracks the decision on the merits, what are we to make of the appearance of impropriety now?

Another possibility is to have judges from other federal circuits review recusal decisions.  So for example, one might have a panel of judges from the First Circuit review Judge Reinhardt's refusal to recuse.  I hardly think that this solves many of the problems described above, though it arguably cures the horse-trading possibility.

All in all, I continue to think that the suggestion of having judges review other judges' recusal decisions to be a terrible one -- one that becomes worse and worse the more I think about it. 

ADDENDUM: Eugene rightly points out to me that the movants' argument isn't limited solely to Ms. Ripston's political views but extends to the issue that her organization participated as amicus lawyers and for the proposed intervenors.  I mentioned up above that the organization had been involved in the planning and organization of the case, and perhaps amicus representation pushes this case into different territory with respect to whether recusal as an initial matter is appropriate (though clearly Judge Reinhardt thinks not, and I'm not so sure that it does so with respect to any recusal review procedure).