Judge Judith Kaye '62 and Stephen Gillers '68 join amicus brief in same-sex marriage case

Judge Judith Kaye '62, former Chief Judge of the State of New York, and Stephen Gillers '68, Elihu Root Professor of Law,  have joined in an amicus brief to the Supreme Court in the Proposition 8 case, Hollingsworth v. Perry. Their filing responds to an amicus brief in support of Proposition 8 (disallowing same-sex marriage in California) and which argues that Federal District Judge Vaughn Walker and Ninth Circuit Court of Appeals Judge Stephen Reinhardt should have been disqualified from the case—Walker because, following the Prop 8 trial and his retirement, he disclosed that he was gay and in a long-term same-sex relationship; and Reinhardt because his wife served as executive director of the American Civil Liberties Union of Southern California, which had sought to appear as an amicus in the lower court,  and because she had expressed public support for the challenge to Proposition 8.

The law did not require recusal of either Walker or Reinhardt, Kaye and Gillers argue in their filing.

Gillers answered some questions about the brief:

Your brief notes that even though various amici raise the question of Judge Walker’s and Judge Reinhardt’s impartiality, that issue is not actually before the Supreme Court. Why go to the trouble of preparing a filing solely to address something that the Court won’t even consider?

Because one never knows what issues a Justice might wish to address, even in a concurrence or dissent. We thought it was important, given the opposition, to defend the judges' right to sit just in case that question arose.

Why do you think the Prop 8 supporters raised the recusal issue at this juncture?

I think they mean to cast doubt on the credibility of the lower court decisions, to taint them in this indirect way, and thereby to encourage a reversal, even if not on the the recusal ground.

Do you worry that, even if the justices don’t formally consider the issue, it might carry sway with some of them?

One never knows, but I doubt it. I think they are likely to ignore the recusal issue and engage on the merits or questions of standing or both. But because one never knows, and because we think the recusal arguments are faulty, we wanted the record to explain why.

Is there a trend here – are litigants increasingly seeking recusals of judges or, if the point for that has passed in a particular case, impugning their impartiality on appeal?

There has been a slight uptick in litigants seeking recusal but it's still rare. It is, however,  quite unusual for an amicus to claim a judge should have been subject to recusal when the parties chose not to preserve (and therefore would seem to have waived) that argument.

How did Judge Kaye and you come to be involved in preparing the amicus brief?

A lawyer in San Francisco solicited our interest. We were interested.

Posted March 15, 2013