ABC News' Ariane de Vogue reports:
Lawyers for the sponsors of Proposition 8 — California’s ban on same sex marriage — filed a motion last night to have Judge Stephen R. Reinhardt, one of the three 9th Circuit judges set to hear an appeal of the case, disqualified because Reinhardt’s wife, Ramona Ripston, serves as the executive director of the ACLU in Southern California.
On Monday the appeals court is set to hear a constitutional challenge to the controversial ballot measure. Last summer a district court judge struck it down.
In a motion for disqualification the lawyers point out that Ripston not only served for the ACLU which filed an amicus brief in the case, but she also met with plaintiff’s lawyers.
According to the brief: “The facts of this case would plainly lead a reasonable person to conclude that Judge Reinhardt’s impartiality might reasonably be questioned. His wife and the organization she leads have not only been active in seeking to redefine marriage in California and active in opposition to Proposition 8, but they have been active participants in this very lawsuit: Plaintiffs’ attorneys consulted with Ms. Ripston before filing suit”.
Last February the ACLU announced that Ms. Ripston was retiring effective February 2011.
Reinhardt, who was nominated to the bench by President Jimmy Carter, is set to hear the case with two other judges, N. Randy Smith, a George W. Bush nominee and Michael Daly Hawkins, a Clinton nominee.
The filing comes after conservatives have questioned Reinhardt’s ability to remain objective in the case. Ed Whelan of the conservative Ethics and Public Policy Center has written, “How is it possible that Reinhardt’s impartiality in this case couldn’t reasonably be questioned when his wife took part in confidential discussions with plaintiffs’ lawyers over whether they should pursue the case?”
But Orrin Kerr, a professor of law at George Washington University, who calls Reinhart “the most-reversed Court of Appeals judge in the land” says that Reinhart’s participation might be good for opponents of Prop 8 in the short term, but bad for them in the long term:
“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.”
UPDATE: Judge Reinhardt has denied the motion to disqualify him from Monday’s prop 8 trial writing: "for reasons that I shall provide in a memorandum to be filed in due course, I am certain that "a reasonable person with knowledge of all the factswould [not] conclude that [my] impartiality might reasonably be questioned.""