I have stated publicly that I believe that Supreme Court would be best served by both Justice Clarence Thomas and Justice Elena Kagan recusing themselves from the health care decision. First, it is highly unlikely that Thomas will recuse himself. He has shown an indifference bordering on hostility toward recusal and reporting rules. As for Kagan, this case appears to have been contemplated by the Administration in selecting Kagan. In her testimony and that of the Attorney General, the Administration actively sought to exclude her from deliberations when she was still Solicitor General. However, selecting a sitting Solicitor General is always a risky business for this reason. Kagan has shown greater attention to recusal rules than Thomas in recusing herself of many cases. The exclusion of the health care care from that list raises obvious appearance problems. The prior anticipation of this problem only magnifies the problem on one level. Kagan looks like a pocket justice — someone selected from the President’s inner circle to guarantee a vote on his most important legislative matter. Yet, she appears intent on voting on the case given her prior participation in the case being accepted for review. Second, I believe the appearance problems for both justices undermines the integrity of the Court and the legitimacy of any final ruling in this historic case. They are responsible for those appearance problems and, in the interest of the Court as an institution, should recuse themselves in my view.
The rule itself leaves considerable room for Kagan and her colleagues to decline demands for recusal.
§ 455. DISQUALIFICATION OF JUSTICE, JUDGE, OR MAGISTRATE JUDGE
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(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;
(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;
(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;
(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
(i) Is a party to the proceeding, or an officer, director, or trustee of a party;
(ii) Is acting as a lawyer in the proceeding;
(iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;
(iv) Is to the judge’s knowledge likely to be a material witness in the proceeding.
(c) A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household.
Experts simply disagree on when impartiality can be reasonably questioned. I do not believe that the Tribe email is enough alone to require recusal as a direct conflict, though it leaves a significant appearance problem. There remains some question as to the involvement of Kagan as solicitor general in the decisions made concerning the health care law. The email suggest some involvement, but she (and the Attorney General) insist that she was walled off in anticipation of this problem.
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