Should Elena Kagan recuse herself?

[gallantwarrior]

Should Elena Kagan be recused from hearing or participating in the upcoming proceedings to determine the Constitutionality of the Obama Health Care Act?

Her personal and professional participation in crafting this legislation is a matter of record. She served as Obama's Solicitor General and counseled him during the drafting of his Health Care Law. She's on record as being proud and pleased that it passed Congress. According to 28 U.S.C. § 455 : US Code - Section 455: Disqualification of justice, judge, or magistrate judge:

(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;

(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.

 

[Jackson]

Absolutely.

 

[Liability]

Yes.

 

[Liability]

But WILL she recuse herself?

Probably not.

 

[RetiredGySgt]

According to Jillian Thomas should recuse himself simply because his wife worked for someone involved in the debate. BUT she will insist Kagan should not.

 

[kiwiman127]

Both Thomas and Kagan should sit this one out.

 

[Liability]

Both Thomas and Kagan should sit this one out.

There is no valid reason why Justice Thomas "should" sit it out.

There is a compelling reason why Justice Kagan should.

She won't, though, probably.

 

[CrusaderFrank]

Absolutely.

If she doesn't, they should so away with recusal

 

[gallantwarrior]

According to Jillian Thomas should recuse himself simply because his wife worked for someone involved in the debate. BUT she will insist Kagan should not.

The Mrs. Thomas allegedly worked for someone involved in this case may be a moot point if the following does not apply. According to the paragraphs below, she would have to have some current interest in the outcome of the case. If she worked for this person previously but does not currently work for them, or has not worked for them for some time, there is no reason why Thomas should be recused from the case, too. Unless his wife would be called as a witness in the case.

To further cite 28 U.S.C. 455, a judge should recuse himself if:
(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 is 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.

Kagan's involvement is unequivocal and clearly meets the criteria for recusal.

 

[CrusaderFrank]

Elaine "I <3 Obamacare" Kagan should recuse herself

 

[R.C. Christian]

I prefer if she just killed herself. That would work great.