February 15, 2012

"Maybe there are good legal arguments why Kagan need not recuse herself..."

"... but there is no good reason that she shouldn't at least come forward and publicly explain her decision."
Not doing so suggests that there is something deeply political (and maybe, like Bush vs. Gore, even something partisan) going on, and that possibility could negatively infect what many of us on the left hope to be Supreme Court affirmation of the constitutional validity of the Affordable Care Act.

59 comments:

Jay said...

and maybe, like Bush vs. Gore, even something partisan

Huh?

There was nothing "partisan" about Bush v Gore.

Fen said...

"maybe even something partisan going on"

Ya think? ObamaCare is not about health care:

Steyn: "I’ve been saying in this space for two years that the governmentalization of health care is the fastest way to a permanent left-of-center political culture. It redefines the relationship between the citizen and the state in fundamental ways that make limited government all but impossible.

That’s not an accident, it’s the whole point of it:

Government health care is not about health care, it’s about government. Once you look at it that way, what the Dems are doing makes perfect sense. For them."

http://www.nationalreview.com/corner/290878/re-nuts-mark-steyn

Don't Tread 2012 said...

Right. Bring on the legalese to explain a conflict of interest involving the democrat party.

Because democrats don't do conflict of interest.

Joe Schmoe said...

When's the last time an SC Justice recused him/herself for anything?

Seriously, I want to know.

vet66 said...

I don't believe she should recuse herself although viscerally I wish she would b cause I don't trust progressives.

That said, we would be better off giving her the benefit of the doubt until she proves her bias or lack of through her written positions.

Worst case is she turns out to be like some in the Wisconsin judiciary who have been blessedly silent of late.

Jay said...

I think it is hysterical that anyone believed Kagan was even considering recusing herself.

Hagar said...

No, I do not think Supreme Court Justices should be required to explain themselves to either the press or eminent law professors.

And in this case, the political reality is that if one recuses, the other must too, so the net for the case at hand is zero, but the Court's standing has been diminished by openly admitting to political biases.

Sofa King said...

When's the last time an SC Justice recused him/herself for anything?

It's not all that uncommon, actually.

E.g.

NYTNewYorker said...

As abortion fades in the rear view mirror, we see ObamaCare crashing into our front bumper.

The left sure does excel in creating the wedge issue. It's the life blood of the left because nobody wants what they're really selling.

Jay said...

the political reality is that if one recuses, the other must to

Um, not really, no.

See, these two things are not the same:


Thomas' wife spent significant time and effortlobbying against the act.


Versus:

Kagan was the solicitor general of the United States when the act was enacted, celebrated its passage over email with professor Laurence Tribe of Harvard Law School (at the time a legal advisor to the Obama administration) and was aware that her office was involved in the litigation strategy defending the law.



But that type of conflation is a favorite tactic of the left.

Bruce Hayden said...

The problem here is that the appearance of impropriety is fairly egregious. Justice Kagen appears to have actively worked for, or at least been involved with, the legislation when working for the Administration as the Solicitor General.

I found interesting the author's obligatory slam at Justice Thomas. He said that he wasn't going to talk about Justice Thomas there because his situation for recusal wasn't as clear cut, and since Thomas was such a low life that he didn't expect any more from him, etc. Then, he called Thomas a liar for what he had said about Roe v. Wade during his confirmation.

This may be obligatory in the New York Times, but for many of the rest of us, that way of automatically slamming a sitting Justice because of his skin color and politics, just invalidates whatever good points the author may have had.

Matthew said...

Saying you won't talk about so-and-so because they are beneath you and you don't expect anything of them is such classic passive-aggressiveness.

"And in this case, the political reality is that if one recuses, the other must too, so the net for the case at hand is zero, but the Court's standing has been diminished by openly admitting to political biases."

There's nothing the same between one's wife working and having an opinion on the bill in question, and working to create the legal defense for the bill in question.

Unless influential people's wives are not supposed to have opinions.

Matthew said...

"There was nothing "partisan" about Bush v Gore."

When a result is not liked, it is partisan. When a result is liked, it is well-reasoned.

This is the way of the world.

Mark O said...

Progressive racism is so elegant.

Dave said...

The Supremes are simply too powerful and to remote from the people. There's no straightforward check on their power after confirmation. If they ignore the constitution entirely and just make things up they get away with it. Impeachment is the only option and it could only work in the most extreme of circumstances. What is needed is a lesser check that can raise the standard for a given question without removing a justice. For example you could argue that if 35 states had a law it would take a super majority of the justices to overturn rather than a simple majority. Wouldn't apply here , of course.

However there could be laws on conflict of interest that are applied to the judiciary that would then go to trail. Currently it's on the "honor system" I believe - maybe someone wise in the ways of the laws can explain if any remedy exists

Curious George said...

"vet66 said...
That said, we would be better off giving her the benefit of the doubt until she proves her bias or lack of through her written positions."

Yes, we should wait until after some bias is shown because SCOTUS rulings are so easily to turn back. The fact that this may be the most important ruling in the history of the U.S. should not concern us.

Scott M said...

"...and that possibility could negatively infect what many of us on the left hope to be Supreme Court affirmation of the constitutional validity of the Affordable Care Act.

Looking at this from a practical standpoint, who cares if it's "negatively" infected? If you win in front of the SCOTUS, you win.

Being negatively infected hasn't mattered a bit to Roe v Wade has it?

Fen said...

This may be obligatory in the New York Times, but for many of the rest of us, that way of automatically slamming a sitting Justice because of his skin color and politics, just invalidates whatever good points the author may have had.

I actually appreciate such a disqualifier. Soon as I saw it I went into scan-mode and discounted the entire article.

Fen said...

There was nothing "partisan" about Bush v Gore.

County canvassing boards consisting of 3 Dems and 0 Rep determining which chads count. Not partisan.

Flordia Supreme Court consisting of all Dems, who's rulings were so fucked up that Federal SCOTUS "voided" them (a term only used when they think you were on crack when you ruled). Not partisan.

Have to love the willful ignorance of the NYTs.

Simon said...

She shouldn't recuse herself (neither should Thomas) and there's really no need to explain it. The current understanding of recusal is insane; generally-speaking judges should recuse when, and not unless, they have a direct personal stake in the outcome (stocks, etc.) or a personal involvement with a private litigant (the defendant is a family member; the plaintiff killed their dog). But the idea that judges should recuse themselves because they might have preexisting opinions about the legal issues in the case at bar is—in a word found elsewhere on the frontpage today—fatuous. The court wisely observed in MNGOP v. White that "it is virtually impossible to find a judge who does not have preconceptions about the law. As then-Justice Rehnquist observed of our own Court: 'Since most Justices come to this bench no earlier than their middle years, it would be unusual if they had not by that time formulated at least some tentative notions that would influence them in their interpretation of the sweeping clauses of the Constitution and their interaction with one another. It would be not merely unusual, but extraordinary, if they had not at least given opinions as to constitutional issues in their previous legal careers.' Indeed, even if it were possible to select judges who did not have preconceived views on legal issues, it would hardly be desirable to do so. 'Proof that a Justice’s mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias.'”

If anyone believes that there is a single member of the court who doesn't have reasonably well-formed ideas about the Constitutional issues at issue in these cases, and at least tentative views about the application of those principles to these cases, they're living on another planet. Nobody in their right mind believes that Justices Scalia and Ginsburg must recuse from the next abortion case simply because they have strong moral views on abortion and settled legal views on the constitutionality of abortion; so what conceivable basis is there for demanding that Kagan recuse for potentially having views that are certainly no more settled and more than likely considerably less so?

The calls for Kagan to recuse have nothing, absolutely nothing, to do with judicial integrity—any more than the recurrent calls from the left for Scalia and Thomas to recuse from various cases. (I recall one article in which a professor, ostensibly seriously, argued that five justices should have recused in Bush v. Gore, and what do you know, they just happened to be the five who voted for what the professor thought was the wrongresult! Fancy that!) This is about stacking the deck. The left wants Thomas out to eliminate a vote against Obamacare and the right wants Kagan out to eliminate a vote for it. The court should decline the invitation to dignify such naked partisanship by responding any more than it already has.

Christopher said...

The Left just wants to be able to make you eat your vegetables.

What's wrong with that?

cubanbob said...

She isn't going to recuse herself and I am fine with that. I would like to believe that once she puts on the robe her mentality has shifted from advocate to neutral impartiality. Besides as a justice however progressive she might be she has to realize granting the government this much power is a bridge too far. She isn't a stupid woman and surely she must understand from a progressive point of view do you really want libertarians, conservatives and the republicans to have that much power when the inevitable pendulum shift occurs.

Matthew said...

"But the idea that judges should recuse themselves because they might have preexisting opinions about the legal issues in the case at bar is—in a word found elsewhere on the frontpage today—fatuous."

She has a direct stake, if she helped create the defense. That is not allowing an honest hearing of the case; it takes away any honesty from the judicial system.

If the jurors in a murder trial called the prosecutor and said: "Hey, if you do this and this, we'll find for you," we'd be in an uproar. As a general rule, if you fill one role during a trial, you shouldn't also get to fill another. If she helped build the case, she shouldn't get to try it too.

Simon said...

Joe Schmoe said...
"When's the last time an SC Justice recused him/herself for anything? Seriously, I want to know."

It happens weekly. Look at any orders list from any term. The last orders list was released on January 23rd, and Justice Sotomayor recused herself from one case, and Justice Kagan recused herself from two cases and one motion. So if we treat the orders list as chronologically sequential, the answer to your question is that Justice Sotomayor was the last justice to publicly recuse herself from a case, and she did so in the most recent orders list, which happens to be nearly a month ago only because the court's in recess.

wyo sis said...

To be cliche, as I am wont to be on occasion, "Where are we going and why are we in this handbasket?"

Matthew said...

Of course, she may not have been part of the group crafting the legal defense of the most important legislative achievement of the administration she worked in as... what was it? Some sort of lawyer-thing, right?

If she didn't, then there's no problem. But, if while working for the executive branch, she was involved with this bill, it would be something like legal insider trading or stacking the deck.

MadisonMan said...

You need an 'Elena Kagan is like Michael Gableman' tag.

Simon said...

Matthew said...
"She has a direct stake, if she helped create the defense. That is not allowing an honest hearing of the case; it takes away any honesty from the judicial system."

The Senate consented to Justice Kagan's appointment on August 5th, 2010. The district court ruling striking down PaPACA, Florida v. DHHS, was argued in December 2010 and handed down in January 2011; the 11th circuit didn't affirm it until August 2011. Precisely how could Justice Kagan participate briefing, arguing, or strategizing in litigation that took place months after she joined the court? It is conceivable that in the spring of 2010, Kagan might have participated in general strategy meetings about potential issues that might be raised in potential litigation. I see little reason, however, to believe that she participated in the earliest stages of the earliest litigation filed, and by the time that one would expect the SG's office to be involved in those cases, Kagan had joined the bench.

There's no evidence that she helped create the defense; she simply worked for the same law firm.

"As a general rule, if you fill one role during a trial, you shouldn't also get to fill another. If she helped build the case, she shouldn't get to try it too."

Since it's the litigants who try the case before the court, paradigmatically the person who helps build the case would try it. Your argument is that she shouldn't get to hear it as a judge. And that would be a good argument if Kagan had argued the case below, if her name was on the brief, or if she had been a judge on the court below. In those situations, a person has a direct personal reputational stake in the outcome, whence the rule that a new judge shouldn't review a case that they heard below (thus the Chief's recusal from one of the Gitmo cases that he heard on the DC circuit and which arrived at the Supreme Court at the same time that he did).

Hagar said...

This is a thoroughly political case, and the justices should not let let themselves get sidetracked into arguing about who is the most partisan or has the best arguments why the other should recuse.

Just stcik their noses up and march in formation as if they were all fully dressed for the occasion.

Matthew said...

If that's the case, she shouldn't have to recuse herself. It's hard for me to accept she wasn't involved with any of the legal aspects of the law, but if that is the case, there's no reason for her recusal.

Island Court said...

I should think that the Court would want Kagan to recuse herself simply to protect its own prestige.

If the Court finds Obamacare to be unconstitutional the issue will probably fade.

But if the Court holds Obamacare to be constitutional and Kagan casts the deciding voter, there will be hell to pay with the public.

I, for one, will be on board with Gingrich's rather radical proposals for sorting out the judiciary.

If they are going to act like politicians they had better brace themselves to be treated like politicians.

edutcher said...

Our betters do not have to explain their actions to us.

Matthew said...
This comment has been removed by the author.
Matthew said...

"But if the Court holds Obamacare to be constitutional and Kagan casts the deciding voter, there will be hell to pay with the public. "

Hecklers should not get a veto.

Simon said...

Island Court said...
"If the Court finds Obamacare to be unconstitutional the issue will probably fade."

Look at how much fuss the left has galvanized in opposition to the First Amendment over Citizens United—a much clearer case.

"But if the Court holds Obamacare to be constitutional and Kagan casts the deciding voter, there will be hell to pay with the public."

That's right—all this stuff really turns on the assumption that the case will be 5-4. Personally, I'd take a bet that it will be 6-3 or even 7-2. If you want a bellwether, You want to look at who said and joined what in Raich and Comstock.

"I, for one, will be on board with Gingrich's rather radical proposals for sorting out the judiciary."

Over the years, I've been plenty critical of the courts and of judicial activism. I don't think anyone could accuse me of being a squish on that stuff, certainly not any of the regulars here. So I want you to understand that background when I say that Gingrich is dangerously out of his depth on this stuff; lacking a real understanding of the traditional function of courts in the Anglo-American legal system or a clear definition of judicial activism, he moves too easily from a criticism of specific cases and judges to a ruinous (and, ironically, unconstitutional) attack on the judicial system as a whole. He's playing to people who think Mark Levin's first book is a serious critique, and it threatens unthinkably radical consequences. I can't support that and so I can't support him.

Christopher in MA said...

Speaking as someone who has a splitting headache - please, please, please let's not argue over Bush v. Gore again.

bgates said...

I would like to believe that once she puts on the robe her mentality has shifted from advocate to neutral impartiality.

That's interesting. Most of the things I would like to believe that I know aren't true involve swimsuit models.

The calls for Kagan to recuse have nothing, absolutely nothing, to do with judicial integrity

I'd take Matthew's example a step further: Should the District Attorney be part of the jury pool?

Fen said...

I would like to disagree with Simon, but I can't.

The only argument I have is that liberals use prior advocacy as a litmus test to deny conservative noms. But "they do it too" is not a valid arguement.

Matthew said...

If Kagan will vote for it being constitutional, there needs to be at least four other votes that way to matter. If there are, her recusal doesn't matter, does it? Since in a tie, the law as-is stands, right?

So, just tactically, it's not worth fighting over. Better to send Anthony Kennedy a cake to try and change his mind.

Jim said...

Thomas' wife made hundreds of thousands of dollars in income lobbying and speaking out against Obamacare, money which (presumably) flowed into their joint bank accounts. That's a pretty damn good reason for him to recuse. How do people not see that??

Jay said...

Look at how much fuss the left has galvanized in opposition to the First Amendment over Citizens United—a much clearer case.


Really?

I can't really think of any examples other than the liberal echo chamber.

They are still going to vote for the candidate who has taken more money from Wall Street than any Presidential candidate in the history of America, and how just started a Super Pac.

On top of the fact there are no serious legislative proposals in reaction to Citizens United, and the biggest left wing anti-free speech senator, Russ Feingold, got booted out of office.

Simon said...

@Matthew In the event of a tie, the decision below is non-precedentially affirmed by an evenly-divided court. In this case, because it's actually a whole raft of consolidated cases which didn't come out the same way below, an evenly-divded court would produce a seriously messy result.

Matthew said...

"That's a pretty damn good reason for him to recuse. How do people not see that??"

You're right. Politician's wives and husbands should not work. In fact, women, in general, should not voice their opinions for fear of squashing their husband's political efforts. Would you prefer they stay in the kitchen, or act as arm candy?

Jay said...

I would like to believe that once she puts on the robe her mentality has shifted from advocate to neutral impartiality.


I wish I could engage in that level of delusion.

I really do.

gadfly said...

Lest we forget, Elana Kagan's relationship to Obama precedes her appointment as Solicitor General. In his famous treatise "America's Ruling Class - And The Perils Of Revolution", Angelo Codevilla cites the relationship between Kagan, Obama and HLS professor Larry Tribe [who recommended Kagan's appointment to the Court].

"If, for example, you are Laurence Tribe in 1984, Harvard professor of law, leftist pillar of the establishment, you can "write" your magnum opus by using the products of your student assistant, [former Clinton advisor] Ron Klain. A decade later, after Klain admits to having written some parts of the book, and the other parts are found to be verbatim or paraphrases of a book published in 1974, you can claim (perhaps correctly) that your plagiarism was "inadvertent," and you can count on the Law School's dean, Elena Kagan, to appoint a committee including former and future Harvard president Derek Bok that issues a secret report that "closes" the incident. Incidentally, Kagan ends up a justice of the Supreme Court. Not one of these people did their jobs: the professor did not write the book himself, the assistant plagiarized instead of researching, the dean and the committee did not hold the professor accountable, and all ended up rewarded."

Simon said...

Jay said...
"On top of the fact there are no serious legislative proposals in reaction to Citizens United"

I seem to remember that there is a disclosure requirement kicking around in Congress, but that's about all that can be done legislatively—or, for that matter, by the legislature: I don't think anyone seriously believes that a constitutional amendment can be ratified. That's not the game they're playing. They're trying to use the case as a tool to galvanize support for Obama; to the extent that the outrage is sincere, the game is to harness public anger, reelect Obama, appoint new justices, and overrule the case; to the extent that the outrage is cynical, they don't care about the last step.

"They are still going to vote for the candidate who has taken more money from Wall Street than any Presidential candidate in the history of America, and how just started a Super Pac."

Of course they are! It's pro forma outrage. That's the most common commodity in politics right now. The bishops are outraged that the Obama administration is at war with Catholics, but they aren't going to excommunicate the catholics who voted for and are running that war. Liberal politicians are outraged about money in politics, but they're sure keen to get some of it, and liberals who don't aspire to office are outraged about money in politics so long as the money is going to the GOP. Conservatives hem and haw about Mitt Romney for the duration of primary season, but we're going to vote "for" him—that is, against Obama through the proxy of Romney—with gusto in a few months. Various constituencies, especially soi-disant independents, make a big show of saying how unhappy they are with Obama and how difficult it is to imagine voting for him again, but in a few months they'll pronounce themselves unable to vote for Romney and announce that they are "reluctantly" voting for Obama again. This stuff is just for show. We live in a potempkin era of artifice.

Jim said...
"Thomas' wife made hundreds of thousands of dollars in income lobbying and speaking out against Obamacare, money which (presumably) flowed into their joint bank accounts."

All of which would have happened whether or not Thomas was on the court, would have continued had the court not taken the cases, and which will continue regardless of the court's decision. Thusm, not "a pretty damn good reason for him to recuse."

Calypso Facto said...

If Kagan herself "[came] forward and publicly explain[ed] her decision" in the way Simon just has, and state outright "I was not involved in planning a legal defense of the ACA", I think she could subdue much of the fervor for her recusal. Maybe she has and I haven't heard it? Nothing easily findable via Google either.

Calypso Facto said...

Jim said...
"Thomas' wife made hundreds of thousands of dollars in income lobbying and speaking out against Obamacare, money which (presumably) flowed into their joint bank accounts."

Wouldn't Thomas then prefer that the Act be upheld so that his wife could continue to lobby for it's repeal and make "hundreds of thousands" more?

Scott M said...

Maybe she has and I haven't heard it? Nothing easily findable via Google either.

She certainly did, but it got buried on something like page D4 because it happened during the same week she battled a giant sperm whale.

Hagar said...

"Thomas' wife made hundreds of thousands of dollars in income lobbying and speaking out against Obamacare, money which (presumably) flowed into their joint bank accounts."

The first part of that statement needs some back-up citations, and the second part presume that a Supreme Court justice and his lawyer wife are completely witless regarding the laws pertaining to lobbying and income reporting.

PJ said...

@Simon: Kagan might have participated in general strategy meetings about potential issues that might be raised in potential litigation. I see little reason, however, to believe that she participated in the earliest stages of the earliest litigation filed, and by the time that one would expect the SG's office to be involved in those cases, Kagan had joined the bench.

Respectfully, Simon, I find this a hairsplit too far. If the question is whether the judge will be fair and impartial as between two positions, and if the judge has previously helped to craft legal arguments in support of one of those positions, why does it matter whether the crafting occurred before the much-anticipated litigation formally commenced? Doesn't the judge have the same "investment" in the position either way? I suppose in an ordinary case you could argue that a conflict arises not because of an affiliation with a legal "position" but with a particular client, but does that argument make sense here, where the legal crafting was done (if at all) on behalf of one of the parties before the court? I don't have a strong opinion one way or the other as to whether Kagan has a duty to recuse, but if the issue turns on "before/after commencement of litigation" distinction, then the recusal rules are nonsense.

Joe Schmoe said...

Thanks Sofa King and Simon for the recusal rate info.

My other question: what is the process for announcing recusal? Is it internal only? I'm wondering why Kagan would need to publicly explain herself.

AlphaLiberal said...

Meanwhile, Ann Althouse is curiously silent about Justice Clarence Thomas taking lavish and expensive gifts from people with business before the court but refusing to recuse himself.

Or how he refused to disclose his wife's income from right wingers on disclosure reports until he was busted on it.

Clarence Thomas is a corrupt dullard who should be impeached forthwith. But do not expect Ann Althouse to voice any objections to right wing corruption.

jeff said...

"Clarence Thomas is a corrupt dullard who should be impeached forthwith. "

Sigh. Always have to consider those you disagree with as stupid. Just a reflex action with you. So which cases did he rule against how he would rule otherwise? Which opinion seems out of character for him? Do you call the other conservative justices dullards, or just the black one? Not that its a problem, we all understand as a progressive, you are allowed to denigrate by race those who stray from their allowed viewpoints.

Love said...

Has Thomas explained himself regarding the health care case?

His wife is a staunch leader in the movement to stop it in its tracks.obvious reason for recusal.

Love said...

Jeff - Thomas may not be a dullard but there is an argument for being corrupt.

Unless of course you feel "forgetting" to include your wife's income on your taxes for a number of years is okay.

gk1 said...

I wonder what the geniuses in the white house plan to do with obamacare when its gutted this summer by the SC? Without the ability to force people into an insurance pool, how does the thing keep from collapsing? Should President Romney shield ex-obamacare apparatchniks for fraud?

Revenant said...

I love the idea that a 7-2 Supreme Court decision was "partisan".

Maybe he's referring to the two Justices? :)

Simon said...

@PJ So it's early 2010, and Kagan and a friend from the IRS Chief Counsel's Office bump into each other in the lunch line at a baked potato vendor on 10th Street, and they're chatting about this healthcare bill thing. And Clarissa says to Elena, "you know, this thing is certain to be litigated if it passes. What angle do you think they'll attack it from? You think any states will get into the litigation?" And they spitball for a couple of minutes until they both have their food, then part and head back to their offices. Was that two legal beagle friends chitchatting, or was it an interdepartmental meeting of the Federal Government in which litigation strategy for the PaPACA litigation was discussed?

@GK1, if the court guts Obamacare, the White House will campaign on changing the court, but I think the odds of that happening are decidedly sallow.