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. Robert Clark,

    You have a valid argument, though I disagree with it for reasons mentioned above. In any event despite the media attention I doubt that there will be any recusals.

  2. I read Somin’s post. I agreed on the result, that none of these Justices should recuse themselves, but disagreed that the argument for Kagan to recuse herself after having assiduously screened the conflict. While the RPCs do not directly apply to judges, this is a situation more akin to RPC 1.11 (former government employees) than 1.10. If Justices were required to recuse themselves in even the remotest connections to work as SG or other government posts, Justice Jackson, just to name one, would have had to recuse from Youngstown Sheet & Tube.

    I think the case for Thomas recusing himself is slightly stronger. However, even in his case, there is little possibility that his vote would be influenced by his wife’s connection to interests opposing the healthcare legislation. In fact, it would represent a bizarre about-face from all his prior Commerce Clause jurisprudence if he voted to uphold the law.

    Both these Justices’ votes are basically already known. One of them recusing without the other would be outcome-determinative and would cast any resulting decision into disrepute. Thus, I think any recusal decision should involve either of them or both of them. I think both of them recusing would probably be for the best, but the chances of Thomas caring in the least about a conflict of interest are about zero.

    As for Scalia, I’m just not seeing any reason for him to recuse worth addressing. I am also not certain he’ll even vote against it.

  3. When the Justices pose for their next annual portrait:

    3 should pose with their hands over their eyes
    3 should pose with their hands over their ears
    3 should pose with their hands over their mouths

    Don’t worry, the robes will hide their tails.

  4. Any brief honest scrutiny of the “Supreme Court” should terrify anyone with a bit of sense that twelve robed fools get to make such stupid pronouncements, or even exist as a body.

  5. Gene,
    Sorry you’re ill. Sometimes these bugs are nature’s way of telling you to hang out under the covers and let people pamper you. Hope you feel better soon.

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