Obamacare

Should Justice Elena Kagan Recuse Herself from ObamaCare Cases?

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The Wall Street Journal argues that soon-to-be Justice Elena Kagan must recuse herself from any legal challenge to ObamaCare that reaches the Supreme Court:

Recusal arises as a matter of judicial ethics if as a government official she expressed an opinion on the merits of the health-care litigation. This is what she would have to render a judgment on were she to be confirmed for the High Court. It is also the question on which she is likely to have participated given her role at the Justice Department.

The SG is the third ranking official at Justice, and its senior expert on Constitutional issues, so it's hard to believe she wouldn't have been asked at least in passing about a Constitutional challenge brought by so many states. The debate about the suit was well underway in the papers and on TV. The matter surely must have come up at Attorney General Eric Holder's senior staff meetings, which the SG typically attends….

Ms. Kagan would sit as Mr. Obama's nominee on the nation's highest Court on a case of momentous Constitutional importance. If there is any chance that the public will perceive her to have prejudged the case, or rubber-stamped the views of the President who appointed her, she will damage her own credibility as a Justice and that of the entire Court.

Since Obama most likely nominated Kagan because she would cast a deferential vote in favor of his agenda, I'm not sure we're likely to see this recusal happening. But you never know.

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  1. She should recuse herself from the bench.

  2. Of course this will never actually happen.

  3. Anyone who opposes Kagan is a sexist.

    Just thought I’d get that out there before one of the resident liberals comes along and says it. Saves ’em time.

      1. Not buying the “Kagan is a lesbian” thing. No proof. Don’t really care, either, which according to some liberals would still make me a homophobe, I’m sure.

        Oh, and good afternoon, Suki!

        1. Spitzer said she was a total slut. He knows his sluts.

  4. I don’t suppose any of the idiots on the Judiciary Committee sought to ask her for a list of issues that she had advised the administration on, and asked her whether she would be recusing herself from ruling on the validity of the advice she had given.

  5. She’ll have as much integrity on this as the wise latina did on MacDonald.

  6. What a bunch of horse shit. Where did this idea that a judge should have no thought in his head before hearing a case come from?

    Opinions are like assholes. Everybody’s got one. I don’t see how “as a government official she expressed an opinion on the merits of the health-care litigation” crosses any lines.

    1. The problem, Warren, isn’t that she has opinions.

      The problem is that she has actually represented one of the parties in cases that will come before her as a Justice. That, my friend, is a conflict of interest, especially in cases where she actually rendered legal advice (often called legal “opinions”) to her client.

      Imagine that you are a DA. You have managed to wangle an appointment to the state supreme court. Should you be allowed to hear appeals on cases you prosecuted?

      Imagine that you are a bigshot corporate attorney who represented BP in its bankruptcy, and that you have wangled an appointment, etc. Should you be allowed to hear appeals of BP’s bankruptcy case?

      1. From what I hear, no one is going to wangle Kagan. She plays softball for the other team.

      2. Hearing cases you argued or worked on is absolutely a conflict. So much so that a refusal to recuse could be an impeachable offense. Justices refuse to hear cases with a much more indirect connection than that.

        I imagine she would abstain in cases where her ties to one side are open and clear.

    2. Opinions are like assholes. Everybody’s got one., thinks his smells like roses and everyone else’s stinks.

  7. she oughtta recuse herself from life

  8. Revolving door revolves.

  9. Dude, makes sense when you think about it!

    But is she Team Edward or Team Jacob? More like recuse from movie theaters!

    LOL

    http://www.sledgehammerdongpillsrefinancenow.com

    1. winner

  10. Considering SCOTUS double anals the Constitution better than Aurora Snow, why should we expect this candidate to be any sense of integrity.

    1. I’m waiting for the triple-anal breakthrough. Stagliano needs to be free to continue working on this goal.

    2. Reason gets some love from Miss Aurora: http://twitter.com/MissAuroraS…..8392589030

  11. We’ll see Clarence Thomas or Antonin Scalia recuse themselves first.

  12. The Senators should examine the June 28 National Review story, and the Harvard law students’ blog, on Kagan’s decision to involve herself in the investigation of the Larry Tribe ghostwriting scandal despite her personal conflict of interest (she was a former Tribe ghostwriter and did a whitewash, imposing no punishment on Tribe).
    http://authorskeptics.blogspot.com

  13. You can oppose Kagan without being sexist, etc. Stop making up silly argments — like the one that says she should recuse herself! http://dissentingjustice.blogs…..urnal.html

  14. The Senators should examine the June 28 National Review story, and the Harvard law students’ blog, on Kagan’s decision to involve herself in the investigation of the Larry Tribe ghostwriting and plagiarism scandal despite her personal conflict of interest (she was a former Tribe ghostwriter and did a whitewash, imposing no punishment on Tribe).
    http://authorskeptics.blogspot.com

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