Legal Commentary

Judge Reinhardt?s Non-Recusal

By John Elwood

So Orin and Eugene blogged the motion asking Judge Reinhardt to recuse himself from the Prop 8 case; and Eugene blogged both Judge Reinhardt?s initial order denying the motion to recuse and linked the memorandum opinion in which the Judge discussed his reasons for not recusing himself. But the Conspirators have not, so far as I recall or so far as the search function will remind me, discussed the merits of that opinion at any length.

Taking on that subject would pull me away from my duties of writing posts on signing statements and obscure OLC topics that no one reads.  So for those seeking fuller discussion, Ed Whelan has a five-part series of posts criticizing Judge Reinhardt?s decision not to recuse himself.  Here is the ?box set? : 1, 2, 3, 4, and 5.

The Ninth Circuit?s decision to certify the issue to the California Supreme Court has sucked much of the oxygen out of the blogosphere?s interest in the matter, at least for the time being. But substantial discussions of judges? recusal obligations are relatively rare (the last significant round of debate I can recall was way back in 2004 over Justice Scalia?s decision not to recuse himself in Cheney v. District Court, although there was a brief flurry of comment in 2010 over Justice Thomas? recusal obligations because of his wife?s work at the Heritage Foundation).  We should take such lessons from these discussions that we can.

Full post as published by The Volokh Conspiracy on January 10, 2011 (boomark / email).