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.