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Ethics
: Legal Ethics ForumJudge Reinhardt's Recusal Opinion in the Same-Sex Marriage Case
The opinion (here) makes for unusually good and interesting reading. Here is a taste:
My wife?s views, public or private, as to any issues that may come before
this court, constitutional or otherwise, are of no consequence. She is a strong,
independent woman who has long fought for the principle, among others, that
women should be evaluated on their own merits and not judged in any way by the
deeds or position in life of their husbands (and vice versa). I share that view and,
in my opinion, it reflects the status of the law generally, as well as the law of
recusal, regardless of whether the spouse or the judge is the male or the female.
. . .
Proponents? contention that I should recuse myself due to my wife?s opinions is
based upon an outmoded conception of the relationship between
spouses. When I joined this court in 1980 (well before my wife and I were
married), the ethics rules promulgated by the Judicial Conference stated that judges
should ensure that their wives not participate in politics. I wrote the ethics
committee and suggested that this advice did not reflect the realities of modern
marriage?that even if it were desirable for judges to control their wives, I did not
know many judges who could actually do so (I further suggested that the
Committee would do better to say ?spouses? than ?wives,? as by then we had as
members of our court Judge Mary Schroeder, Judge Betty Fletcher, and Judge
Dorothy Nelson). The committee thanked me for my letter and sometime later
changed the rule. That time has passed, and rightly so. In 2011, my wife and I share many fundamental interests by virtue of our marriage, but her views
regarding issues of public significance are her own, and cannot be imputed to me,
no matter how prominently she expresses them. It is her view, and I agree, that
she has the right to perform her professional duties without regard to whatever my
views may be, and that I should do the same without regard to hers. Because my
wife is an independent woman, I cannot accept Proponents? position that my
impartiality might reasonably be questioned under § 455(a) because of her
opinions or the views of the organization she heads.
Full post as published by Legal Ethics Forum on January 04, 2011 (boomark / email).
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