“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,” Reinhardt wrote in
Perry v. Schwarzenegger (2011).
Reinhardt also properly rejected the claim that his wife had an “interest” under section 455 (b), even though the organization had filed an amicus brief in the district court for the case now on appeal before him. Thus, Judge Reinhardt demolished every argument from Mayer and her so-called judicial ethics experts that Ginni Thomas’ activities or views require Justice Thomas to recuse.
In fact, Stephen Gillers, whom Mayer cites as the gold standard for judicial ethics experts and who rips Ginni Thomas for “behaving horribly and hurt[ing] the Supreme Court and the administration of Justice,” filed a
brief vigorously defending Reinhardt for not recusing:
Gilllers’ unprincipled and hypocritical attack on Ginni Thomas’ permissible conduct and speech is despicable.
Judge Reinhardt also said it is important that “judges not recuse themselves unless required to do so, or it would be too easy for those who seek judges favorable to their case to disqualify those that they perceive to be unsympathetic merely by questioning their impartiality.” To succumb to Mayer’s argument would be to institutionalize judge shopping.
As the late Justice Antonin Scalia
observed, overbroad recusal standards “would also encourage so-called investigative journalists to suggest improprieties, and demand recusals, for other inappropriate (and increasingly silly) reasons.” Mayer’s smear piece is the embodiment of these concerns.