In 'Reverse Benchslap,' Judge Responds to Criticism by 9th Circuit's Reinhardt

Appeals Judge Stephen Reinhardt didn’t get the last word in a dispute over a lower court’s alleged foot-dragging in a ballot dispute.

On Wednesday, the San Francisco-based 9th U.S. Circuit Court of Appeals granted an emergency stay that allowed Nevada ballots to be printed with language giving voters the option to choose “none of these candidates.” The stay suspended an oral ruling by U.S. District Judge Robert Jones in which he held that the law requiring the option was unconstitutional and ordered state officials to strike the language from the ballot.

A concurring opinion on Wednesday by Reinhardt had accused Jones of delaying a written opinion, apparently to prevent an appeal before ballots were printed. “Such arrogance and assumption of power by one individual is not acceptable in our judicial system,” Reinhardt wrote.

Jones responded on Thursday in what Above the Law calls an example of judicial “reverse benchslaps.” The Las Vegas Sun and the Wall Street Journal Law Blog also have stories.

Jones’ order canceled a Sept. 14 hearing on additional motions and defended his scheduling in the case. Jones said he fully intended to issue a written order, allowing an appeal, and wrote that “Judge Reinhardt’s suggestion of a nefarious motivation is false.”

Jones then turned the tables on Reinhardt, accusing the appeals judge of contacting his chambers through the 9th Circuit clerk’s office to request early entry of his order. Jones deems the alleged contact “inappropriate judicial activity” designed to influence the lower court and establish appellate jurisdiction. Jones concludes his order by parroting Reinhardt’s words.

“Judge Reinhardt’s separate decision to impugn the integrity and motivation of the undersigned judge, together with his contact to chambers through the 9th Circuit Clerks’ Office, was an example of assumption of power by one individual which is not acceptable in our judicial system,” Jones wrote.

Reinhardt is a Democratic appointee and Jones is a Republican appointee. The suit challenging the Nevada law was backed by the Republican National Committee, apparently because of fears that voters who dislike President Barack Obama would choose “none of these candidates” rather Mitt Romney.

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