Judge recusing based on wife's activities

In an earlier thread, one poster said this about a judge’s wife:

In another case, a judge was asked to recuse himself based on his wife’s ACLU leadership position. He said, in a memorandum opinion explaining his refusal to recuse:

Who has the right of it? gonzomax or Judge Stephen Reinhardt?

Judge Reinhardt. What I find problematic is not what the husbands and wives of judges do, but that judges themselves are identified as belonging to particular political parties in the U.S. If judges can be partisan politically, then it seems really irrelevant if one judge’s spouse is a Tea Partier, or another is an ACLUite.

I would say also that there is a difference between a partisan organization like one of the two major political parties, and a non-partisan organization like the ACLU, which (as far as I know) doesn’t endorse candidates for political office.

Both, I think, depending upon the circumstances. I agree with Judge Reinhardt that it is unreasonable and unrealistic to expect judges to keep their spouses out of political activism, and that at a certain point we simply need to trust judges to reach decisions independent of the convictions of their loved ones. After all, there are doubtless plenty of judges whose spouses have very strong political convictions but are not activists - we trust those judges to say “yes, dear” and do their jobs regardless. That’s a good general rule to follow.

On the other hand, there are extreme cases in which recusal is clearly necessary. Say, for example, that the judge in a lawsuit against an aircraft manufacturer was married to an industry lobbyist - at that point, there are some pretty potent forces coming to bear that impair the appearance of neutrality.

And then, of course, there’s the middle ground. And once we get there, I’m honestly not sure there’s a clear-cut rule. The closest I can think of to a rule is a sort of vague impulse that the pressure towards recusal should be greatest when the conflict of interest is more financial than ideological, and least when the concern is purely that the judge’s spouse has specific and publicly-articulated views on the matter at hand. Thus, I tend to think that neither Thomas nor Reinhardt should have recused themselves. But I wouldn’t be willing to say that there are no cases in which a spouses political activism could create a conflict of interest requiring recusal. (Of course, there’s the obvious case of the spouse being active in the organization involved in litigation - but I wouldn’t be willing to say that these are the only such cases).

There’s a very good legal argument, Mr. Excellent, as to why a spouse’s financial interest are more important for recusal than his or her political ones. Justice Thomas and Judge Reinhardt have a legal claim on their wives assets. They have no such legal claim on their opinions.

If a spouse benefits financially from a decision made by a judge, the judge benefits too.

The general rule is to avoid the ‘appearance of evil’ (or at least in the UK, I assume it’s preety simlair for other common law jurisdictitons). It’s not necessarily that a Judge would be unable to deal a fair verdict, it’s just as much (if not more, as Judges are generally assumed to be of impeccable character and fairness) about people (parties to the case and the public at large) being able to have confidence in their judgement.

In the USA ther judiciary is relatively politicized anyway.

How is that relevant? The ACLU strongly endorses particular views of the law, which is precisely what judges are asked to deliver. It’s much rarer for judges to be asked to decide issues which affect which candidate’s elected to political office.

The judiciary everywhere is politicized. It may (or may not) be more overtly party politicized here, but every judge brings their own biases and histories to the table.

And if we are speaking of the UK, the judiciary until extremely recently came exclusively from a particular class.

My uncle was a Judge (in the UK) and through my work I know quite a few Judges.

Obviously it’s undeniable that Judges have thier own polictcal views, you don’t become a Judge by not having an opinion on things, but any kind of association with a political party even on a relatively low-level is seen as a big no-no.

I know - I grew up there and have judge friends there. But it isn’t the party allegiance I am talking about. Judges in England were, at least until I left the country, overwhelmingly conservative if not Conservative.

Perhaps you can explain to me what I read here (“Federal appeals court says Wisconsin judges can announce political party membership”, wisbar.org):

I thought that endorsing a partisan candidate was more frowned upon (for a judge) than taking positions on how a law should be interpreted. This is why I implied that having a wife be a member of a partisan political organization that endorses candidates might be more problematic than having a wife be a member of a non-partisan organization that defends the constitution.

I have a friend who was a federal judge in Australia – he’s now retired. He was a member of the Labor Party, but left the party before being appointed as a judge. His wife, however, remained a member of the party, but did only play a small non-public role there.

I saw you palm that card.

“Defends the Constitution” is undoubtedly what the ACLU would say it does, but an equally fair description might be “Seeks to expand the Constitution.” The ACLU does not merely fight to uphold existing interpretations of the Constitution, but to expand its reach.

And courts decide those issues much more often than they are candidates or decide cases that place candidates in office.

I see that there is a prohibition for judges to endorse political candidates. Is there a policy preventing judges from belonging to the ACLU, or endorsing actions taken by the ACLU? I didn’t think there was. If there isn’t, then it would surely seem that federal courts think endorsing political candidates is more of a problem than agreeing with the ACLU.

That’s true. But what Bricker is saying is also true - a federal judge is significantly more likely to decide on a case impacting an element of ACLU interest and action than to decide on a case impacting electoral matters. They just aren’t that many electoral cases, and there are a metric crapload of ACLU-issue related cases.

I don’t know who gonzo was talking about, but I don’t much care what judges are into politically. Bias is bias, and one who belongs to no political party or activist organization can be just as biased as one who isn’t.

I do care about villa’s point regarding financial interests.

I can believe that. It’s just that Bricker was wondering why the point I raised was relevant, and what difference a spouse belonging to a political party would make vs. belonging to the ACLU. The situations are not the same.

He said:

Arnold Winkelried is right that the distinction is relevant. The judicial ethics rules view partisan politics quite differently from issue-advocacy – take a look at Canon 5, for example. A judge may attend an ACLU fundraiser but may not generally attend an RNC fundraiser.

It is also relevant that Thomas is a Supreme Court Justice, who is not subject to the Code of Conduct.

That said, I think Reinhardt is right for all the reasons in that opinion, and gonzomax is wrong for the same reasons.

Is that a matter of personal opinion, professional opinion of others that can be quoted, or can you point to an official policy statement?