# Judge recusing based on wife's activities **URL:** \ **Category:** Great Debates\ **Created:** [January 5, 2011, 6:14pm UTC](https://boards.straightdope.com/t/judge-recusing-based-on-wifes-activities/566512 "2011-01-05T18:14:50Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 5, 2011, 6:14pm UTC](https://boards.straightdope.com/t/judge-recusing-based-on-wifes-activities/566512/1 "2011-01-05T18:14:50Z")
In an earlier thread, one poster said this about a judge’s wife: > [@Correlation of SCOTUS votes.](https://boards.straightdope.com/t/correlation-of-scotus-votes/558036/34): > > The judicial is a lot about appearance of neutrality. Apparently it does not apply to these two. Thomas’s wife is a tea bagger and has her own tea bagger organization . She has not revealed who sponsors her group. Judges should know what appearances mean. 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: > [@](#): > > 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. Who has the right of it? **gonzomax** or Judge Stephen Reinhardt? ---
**Author:** ![Giles](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/giles/32/60_2.png) [@Giles](https://boards.straightdope.com/u/Giles)\ **Post date:** [January 5, 2011, 6:20pm UTC](https://boards.straightdope.com/t/judge-recusing-based-on-wifes-activities/566512/2 "2011-01-05T18:20:24Z")
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. ---
**Author:** ![Arnold\_Winkelried](https://avatars.discourse-cdn.com/v4/letter/a/3d9bf3/32.png) [@Arnold\_Winkelried](https://boards.straightdope.com/u/Arnold_Winkelried)\ **Post date:** [January 5, 2011, 6:27pm UTC](https://boards.straightdope.com/t/judge-recusing-based-on-wifes-activities/566512/3 "2011-01-05T18:27:58Z")
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. ---
**Author:** ![Mr.Excellent](https://avatars.discourse-cdn.com/v4/letter/m/f19dbf/32.png) [@Mr.Excellent](https://boards.straightdope.com/u/Mr.Excellent)\ **Post date:** [January 5, 2011, 6:28pm UTC](https://boards.straightdope.com/t/judge-recusing-based-on-wifes-activities/566512/4 "2011-01-05T18:28:14Z")
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). ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [January 5, 2011, 6:30pm UTC](https://boards.straightdope.com/t/judge-recusing-based-on-wifes-activities/566512/5 "2011-01-05T18:30:48Z")
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. ---
**Author:** ![Asympotically\_fat](https://avatars.discourse-cdn.com/v4/letter/a/e47c2d/32.png) [@Asympotically\_fat](https://boards.straightdope.com/u/Asympotically_fat)\ **Post date:** [January 5, 2011, 6:41pm UTC](https://boards.straightdope.com/t/judge-recusing-based-on-wifes-activities/566512/6 "2011-01-05T18:41:11Z")
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. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 5, 2011, 6:54pm UTC](https://boards.straightdope.com/t/judge-recusing-based-on-wifes-activities/566512/7 "2011-01-05T18:54:16Z")
> [@Arnold\_Winkelried](#): > > 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. 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. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [January 5, 2011, 6:57pm UTC](https://boards.straightdope.com/t/judge-recusing-based-on-wifes-activities/566512/8 "2011-01-05T18:57:18Z")
> [@These are my own pants](#): > > In the USA ther judiciary is relatively politicized anyway. 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. ---
**Author:** ![Asympotically\_fat](https://avatars.discourse-cdn.com/v4/letter/a/e47c2d/32.png) [@Asympotically\_fat](https://boards.straightdope.com/u/Asympotically_fat)\ **Post date:** [January 5, 2011, 7:04pm UTC](https://boards.straightdope.com/t/judge-recusing-based-on-wifes-activities/566512/9 "2011-01-05T19:04:20Z")
> [@villa](#): > > 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. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [January 5, 2011, 7:10pm UTC](https://boards.straightdope.com/t/judge-recusing-based-on-wifes-activities/566512/10 "2011-01-05T19:10:20Z")
> [@These are my own pants](#): > > 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. ---
**Author:** ![Arnold\_Winkelried](https://avatars.discourse-cdn.com/v4/letter/a/3d9bf3/32.png) [@Arnold\_Winkelried](https://boards.straightdope.com/u/Arnold_Winkelried)\ **Post date:** [January 5, 2011, 7:12pm UTC](https://boards.straightdope.com/t/judge-recusing-based-on-wifes-activities/566512/11 "2011-01-05T19:12:40Z")
> [@Bricker](#): > > 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. Perhaps you can explain to me what I [read here](http://www.wisbar.org/AM/Template.cfm?Section=News&Template=/CM/ContentDisplay.cfm&ContentID=93702) (“Federal appeals court says Wisconsin judges can announce political party membership”, [wisbar.org](http://wisbar.org)): > [@](#): > > June 15, 2010 – The U.S. Court of Appeals for the Seventh Circuit on June 14 held that a Wisconsin judge or judicial candidate may announce political party membership, but cannot endorse partisan candidates or personally solicit campaign contributions. 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. ---
**Author:** ![Giles](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/giles/32/60_2.png) [@Giles](https://boards.straightdope.com/u/Giles)\ **Post date:** [January 5, 2011, 7:18pm UTC](https://boards.straightdope.com/t/judge-recusing-based-on-wifes-activities/566512/12 "2011-01-05T19:18:25Z")
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. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 5, 2011, 7:43pm UTC](https://boards.straightdope.com/t/judge-recusing-based-on-wifes-activities/566512/13 "2011-01-05T19:43:36Z")
> [@Arnold\_Winkelried](#): > > Perhaps you can explain to me what I [read here](http://www.wisbar.org/AM/Template.cfm?Section=News&Template=/CM/ContentDisplay.cfm&ContentID=93702) (“Federal appeals court says Wisconsin judges can announce political party membership”, [wisbar.org](http://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 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. ---
**Author:** ![Arnold\_Winkelried](https://avatars.discourse-cdn.com/v4/letter/a/3d9bf3/32.png) [@Arnold\_Winkelried](https://boards.straightdope.com/u/Arnold_Winkelried)\ **Post date:** [January 5, 2011, 7:50pm UTC](https://boards.straightdope.com/t/judge-recusing-based-on-wifes-activities/566512/14 "2011-01-05T19:50:35Z")
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. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [January 5, 2011, 7:58pm UTC](https://boards.straightdope.com/t/judge-recusing-based-on-wifes-activities/566512/15 "2011-01-05T19:58:36Z")
> [@Arnold\_Winkelried](#): > > 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. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [January 5, 2011, 7:59pm UTC](https://boards.straightdope.com/t/judge-recusing-based-on-wifes-activities/566512/16 "2011-01-05T19:59:55Z")
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. ---
**Author:** ![Arnold\_Winkelried](https://avatars.discourse-cdn.com/v4/letter/a/3d9bf3/32.png) [@Arnold\_Winkelried](https://boards.straightdope.com/u/Arnold_Winkelried)\ **Post date:** [January 5, 2011, 8:21pm UTC](https://boards.straightdope.com/t/judge-recusing-based-on-wifes-activities/566512/17 "2011-01-05T20:21:13Z")
> [@villa](#): > > 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 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. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [January 5, 2011, 8:29pm UTC](https://boards.straightdope.com/t/judge-recusing-based-on-wifes-activities/566512/18 "2011-01-05T20:29:35Z")
> [@Really\_Not\_All\_That\_Bright](#): > > I don’t know who **gonzo** was talking about… He said: > [@gonzomax](#): > > Thomas’s wife is a tea bagger and has her own tea bagger organization ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [January 5, 2011, 11:53pm UTC](https://boards.straightdope.com/t/judge-recusing-based-on-wifes-activities/566512/19 "2011-01-05T23:53:06Z")
**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. ---
**Author:** ![Musicat](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/musicat/32/20189_2.png) [@Musicat](https://boards.straightdope.com/u/Musicat)\ **Post date:** [January 6, 2011, 12:03am UTC](https://boards.straightdope.com/t/judge-recusing-based-on-wifes-activities/566512/20 "2011-01-06T00:03:02Z")
> [@Bricker](#): > > “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. Is that a matter of personal opinion, professional opinion of others that can be quoted, or can you point to an official policy statement? [Next page](https://boards.straightdope.com/t/judge-recusing-based-on-wifes-activities/566512.md?page=2)