Fox: Constitution Demands Kagan Recuse Herself

According to Fox News, the Constitution is a bit vague on privacy but not conflicts rules governing Associate Justice Elena Kagan. The language actually comes from Section 455 of Title 28 of the U.S. Code. Notably, there does not appear to be anything in the Constitution relevant to the recusal of Clarence Thomas.

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.

How Current is This?
(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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28 thoughts on “Fox: Constitution Demands Kagan Recuse Herself”

  1. The law is often pretty damn trivial and the opinions are written by the clerks anyway, I’d prefer to have a wide variety of domain experts on the court as opposed to a bunch of political careerists lawyer douches.

    For the legal advice they can hire a few Turleys to larn them up on the job.


    Nonlawyers On The Supreme Court?

    by Ken Rudin

    As it turned out, President Obama has nominated Sonia Sotomayor, a judge on the U.S. Court of Appeals, to fill a soon-to-be-vacant seat on the Supreme Court. But he could have picked someone with no legal experience at all.

    And that leads to this question from Allen Ayers of Williamsburg, Va.:
    “The United States Constitution contains no prerequisites for appointment to the Supreme Court. How many U.S. Supreme Court justices have not been lawyers and what were their names?”

    You are certainly correct about qualifications (or lack of same) to be considered for the Supreme Court. But every single justice on the court, dating back to John Jay, has been a lawyer; each one either attended law school, took law classes, was admitted to the bar, or practiced law.

  3. @Mike, in no way did I suggest that Somin has an unbiased opinion. I’m afraid in your obliviousness, you’ve missed my point completely and proceeded to project tons of your own bullshit onto me. Once again.

    Here is another guy that presumably suggests Kagan should recuse herself, and would like to see more doctors and scientists, engineers, and not fucktarded lawyers on the Court.

    Oblivious Supreme Court poised to legalize medical patents
    By Timothy B. Lee

    The Supreme Court on Wednesday heard oral arguments in a case that raises a fundamental question: whether a physician can infringe a patent merely by using scientific research to inform her treatment decisions.

    Unfortunately, this issue was barely mentioned in Wednesday’s arguments. A number of influential organizations had filed briefs warning of the dire consequences of allowing medical patents, but their arguments were largely ignored in the courtroom. Instead, everyone seemed to agree that medical patents were legal in general, and focused on the narrow question of whether the specific patent in the case was overly broad.

    This should make the nation’s doctors extremely nervous. For two decades, the software industry has struggled with the harmful effects of patents on software. In contrast, doctors have traditionally been free to practice medicine without worrying about whether their treatment decisions run afoul of someone’s patent. Now the Supreme Court seems poised to expand patent law into the medical profession, where it’s unlikely to work any better than it has in software.
    Sorry, that correlation is patented

    The case focuses on a patent that covers the concept of adjusting the dosage of a drug, thiopurine, based on the concentration of a particular chemical (called a metabolite) in the patient’s blood. The patent does not cover the drug itself—that patent expired years ago—nor does it cover any specific machine or procedure for measuring the metabolite level. Rather, it covers the idea that particular levels of the chemical “indicate a need” to raise or lower the drug dosage.

    The patent holder, Prometheus Labs, offers a thiopurine testing product. It sued the Mayo Clinic when the latter announced it would offer its own, competing thiopurine test. But Prometheus claims much more than its specific testing process. It claims a physician administering thiopurine to a patient can infringe its patent merely by being aware of the scientific correlation disclosed in the patent—even if the doctor doesn’t act on the patent’s recommendations.

    This extraordinary claim prompted a broad coalition of public interest groups to write amicus briefs urging the Supreme Court to invalidate the patent and others like it. The American Association of Retired Persons and the American Civil Liberties Union both wrote briefs arguing the patent should be invalidated. The ACLU brief argued that regulating doctors’ thoughts runs afoul of the First Amendment. A coalition of three libertarian think tanks filed a brief (which, full disclosure, I played a small part in drafting) warning that legalizing medical patents will cause the same kinds of problems in the medical profession that it has in the software industry.

    Also opposing the patent was a broad coalition of medical providers led by the American Medical Association. “If claims to exclusive rights over the body’s natural responses to illness and medical treatment are permitted to stand, the result will be a vast thicket of exclusive rights over the use of critical scientific data that must remain widely available if physicians are to provide sound medical care,” the medical organizations’ brief argued.

    “Conscientious physicians will be unwilling and unable to avoid considering all relevant scientific information when reviewing test results,” the doctors wrote. “Thus, as medical knowledge accumulates, patent licenses increasingly will be required for physicians to conduct even well established diagnostic tests.”

    ustices Scalia and Breyer showed some skepticism that patents could cover the use of scientific correlations in medical practice. But the other justices expressed no such skepticism. At one point, Justice Kagan offered some advice to Prometheus’s lawyer. “What you haven’t done is say at a certain number you should use a certain treatment, at another number you should use another treatment,” she said. “I guess the first question is why didn’t you file a patent like that? Because that clearly would have been patentable. Everybody agrees with that.”

    Of course “everyone” does not agree with that. In particular, the American Medical Association (and, presumably, many of the nation’s doctors) doesn’t. Neither does the ACLU, the AARP, or the Cato Institute. Yet if any members of the high court disagreed with Kagan, they didn’t speak up.

    We’ve long argued that the Supreme Court should overturn the lower courts’ de facto legalization of software patents. Instead, the Supreme Court appears poised to take a step in the opposite direction and expand patent law to cover the medical profession. And they seemed oblivious to how dramatic a step that would be.

    We really hope the justices will read some of those amicus briefs before they make their ruling.

    1. Anon,
      Your response was typically inane and insulting. Perhaps though that was yet another sally of your sarcasm, or maybe you rushed because you’ve got
      another Vegas Hooker flight in the works. What I do know is that whether or not lawyers should be Justices is not the topic of this thread. Your using it to cover for your lack of argument. For someone who pretends to be middle of the road, leaning leftward, you sure spend most of the time covering for those you pretend to abjure. Oh wait! I can’t accuse you of any of that, you are anonymous in name and everything else, save for your boasts about giving hookers multiple orgasms.

  4. Blouise,

    Yeah, it’s pretty nasty, but I’m glad to hear you’re on the upswing.

  5. Gene,

    That stuff is awful … I’m just getting over it. I’m sick of being sick!

  6. Mike,

    I’m down with some kind of weather change induced creeping chest cold thingy and even though your last post made me laugh so hard it caused a fit of furious coughing and hacking, it was well worth it. Well played.

  7. “In January 2008, Clarence Thomas addressed a fundraising gathering convened in Palm Springs, California, by Koch Industries, the privately held conglomerate helmed by Charles and David Koch, for major backers of the Tea Party movement and right-wing think tanks, including the Heritage foundation, for which Ginni Thomas worked for a number of years. Although, according to the New York Times, a court spokesperson described Thomas’ appearance as “a brief drop-by,” Thomas’ own financial disclosure forms claim reimbursement for an undisclosed sum by the Federalist Society — an organization that receives Koch funding — for four days at Palm Springs.”

    Now Anon stated:

    “You may wish to consider that Professor Somin of the Volokh Conspiracy found there was no reason whatsoever for AS, CT to recuse themselves, and while he didn’t think EK should recuse herself, he thought there was more of a case there.”

    Professor Ilya Somin is a member of the Koch funded Federalist Society,
    guess who else is?

    “The society [Federalist] was begun by a group including Edwin Meese, Robert Bork, Theodore Olson, David M. McIntosh, and Steven Calabresi, and its members have included Supreme Court justices Antonin Scalia, John G. Roberts, Clarence Thomas and Samuel Alito”

    So Anon you’re really going to quote to me as having an unbiased opinion, a man who is a member of an Ultra-Conservative front group for the Koch

    The first article above provides 6 valid reasons why Justice Thomas should resign, or be impeached. You might read it and compare it to the charges against Justice Kagan. However, in your strange view of things you would prefer what?

    “I think this is more sensible than figuring out how to rationalize the bullshit from “your guy” while differentiating the bullshit from “their guy.”

    “And do whatever you can to support reform of the Court, either by demanding that Congress stop deferring from asking questions regarding the issues that may confront a justice, and/or demanding that the President nominate non-lawyers to the court, like doctors, engineers, scientists, teachers, etc.”

    Anon, it is us vs. them. I admit it. The US though represents the people trying to fend off a Feudal Plutocracy from controlling America. By framing it as you do you really have no solution and though you hide it well, I think the Plutocracy would suit you just fine.

  8. Shoulda, woulda, coulda.

    Thomas should resign.

    And there’s no way Kagan should step out of this decision if Thomas doesn’t.

    Liberals need to remember that there are no rules in a knife fight. And the Supreme Court’s been in a knife fight since Bush v. Gore.

  9. Sure Kagan should recuse herself . . . just as soon as Thomas and Scalia retroactively recuse themselves from Citizens United.

  10. …”undermines the integrity of the Court and the legitimacy of any final ruling in this historic case…” Integrity? From this court that is so politicized they might as well call themselves a super congress, .

  11. anon:

    good luck with that idea, those f’ers have us by the face like one of those aliens and they injected us with the demon seed.

  12. “None of these clowns are going to recuse themselves so let’s stop pretending they actually intend to uphold their oath.”

    I think this is more sensible than figuring out how to rationalize the bullshit from “your guy” while differentiating the bullshit from “their guy.”

    And do whatever you can to support reform of the Court, either by demanding that Congress stop deferring from asking questions regarding the issues that may confront a justice, and/or demanding that the President nominate non-lawyers to the court, like doctors, engineers, scientists, teachers, etc.

    I can’t stand Microsoft, but Bill Gates would be a far better Justice than any of the law school bred bastards that reign today.

  13. Since the 2000 Florida debacle I’m having a difficult time taking anything the Supreme Court does seriously.

    Slap red noses on all the Justices and give a water-squirting sunflower to the Chief … then let ’em pontificate to their hearts’ content.

    None of these clowns are going to recuse themselves so let’s stop pretending they actually intend to uphold their oath.

  14. @MS, rl,

    You may wish to consider that Professor Somin of the Volokh Conspiracy found there was no reason whatsoever for AS, CT to recuse themselves, and while he didn’t think EK should recuse herself, he thought there was more of a case there.

    So, I’ll put you guys down as objectively pro-corruption, rationalized by your political objectives.

    Just like Professor Somin.

  15. I am with Mike S. on this one. If Thomas and Scalia recuse themselves, then Kagan should join them. Without their recusals it would be ludicrous to expect Kagan to live by different standards than the rest of the Court. What is good for the goose is good for the gander.

  16. On an ideal Supreme Court, given a group making impartial rulings based on the merits of the arguments in the cases before them, then yes Kagan and Thomas should recuse themselves. This particular Court falls far from that standard. In the 2000 election case Bush v. Gore, 3 judges argued that
    the Florida Supreme Court acted against the legislative intent:

    “Three justices (Rehnquist, Scalia and Thomas) argued that the Florida Supreme Court had acted contrary to the intent of the Florida legislature. However, four justices (Breyer, Souter, Ginsburg, and Stevens) specifically disputed this in their dissenting opinions, and the remaining two Justices (Kennedy and O’Connor) declined to join Rehnquist’s concurrence on the matter.”

    William Rehnquist was a conservative ideologue prior to his court appointment, of which when proposed for a SCOTUS slot Richard Nixon asked. “Rehnquist is pretty far right, isn’t he?” Haldeman responded, “Oh, Christ! He’s way to the right of Buchanan”. . Given his history on the Court Rehnquist showed Haldeman spoke the truth.

    Two of those three justices from 2000 are still on this Court today. They come from the same ideological bet as our former Chief Justice. While there have been many people on SCOTUS that left their ideology behind upon appointment, Warren and Douglas for instance, Scalia and Thomas have blatantly remained partisan in their decisions and in their activities while not sitting as Justices.

    In my opinion America is embattled today in a fight to retain our Constitutional rule of Law. For Kagan to recuse herself, without Thomas and Scalia doing the same, would be handing those Constitutional De-constructionists a loaded gun aimed at the heart of our Rule of Law.

  17. I think if Thomas, Scalia and Kaegn should recuse themselves but that is just me….It should be a 2 fer 1 on this one….Just to even the balance….

    As noted by the Professor….Thomas is hostile….and others would have been disciplined for what he takes as an ordinary day…But then again….You don’t have to be a lawyer to serve on the Sct Court….Just good connections….

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