Was Kagan right to recuse?

healthmyths

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Sep 19, 2011
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In its notice, the court said Justice Elena Kagan had recused herself from the decision to take the case.


Justice Kagan has come under fire for not recusing herself from the decision to hear challenges to the new health care law.

She was Mr. Obama’s solicitor general from March 2009 up through May 2010, though she stopped taking part in cases in March 2010 so she would preserve her ability to hear them as a justice.

The health care law was signed in March 2010. Arizona’s immigration law passed in April 2010.
http://www.washingtontimes.com/news/2011/dec/12/supreme-court-will-hear-arizona-immigration-law-ca/


So what is the difference between the immigration bill and Obamacare?
Someone care to explain why she recused from immigration but not Obamacare both of which she worked on!
 
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Do you know what the solicitor general does? He/she represents the federal government before the Supreme Court and handles related matters. Kagan would have been involved in the lawsuit in question, and so she is now recusing herself. If you were someone's lawyer in a case, you should not become a judge for the case.
 
Do you know what the solicitor general does? He/she represents the federal government before the Supreme Court and handles related matters. Kagan would have been involved in the lawsuit in question, and so she is now recusing herself. If you were someone's lawyer in a case, you should not become a judge for the case.

She was also involved/expressed opinions on, Obamacare. She should recuse herself from hearing that case as well.
 
And that was my point!
Why recuse from AZ case but not Obamacare both of which she built cases for to represent to the SCOTUS as SG!

So again.. why one and not the other?
I KNOW but would like to see if others can based on the evidence come to my same conclusion!
 
She recused herself from this one so it doesn't look so bad when she refuses to recuse herself for the healthcare law. Smoke and mirrors, smoke and mirrors. She should stay in this one and then recuse herself from the healthcare law that she helped craft a defense for, that would be the right thing to do.
 
If she has indeed recused herself then my hat's off to her and I have a newfound glimmer of hope in our three branches of government.
 
Do you know what the solicitor general does? He/she represents the federal government before the Supreme Court and handles related matters. Kagan would have been involved in the lawsuit in question, and so she is now recusing herself. If you were someone's lawyer in a case, you should not become a judge for the case.

She was also involved/expressed opinions on, Obamacare. She should recuse herself from hearing that case as well.

Why exactly?

And Scalia should have recused himself from several cases..including Gore v. Bush..for numerous reasons.

That was not done. And Supreme Court justices are under no obligation to recuse. It's more of an "Honor system."
 
She may have recused herself from the AZ case so that her refusal to recuse from the far more important "Obamacare" case, would be viewed more favorably by the public. If so, it's a brilliant PR move.

We'll see what happens....Personally, I think she needs to recuse from both cases.
 
By this line of "reasoning", Justice Thomas should clearly recuse himself from the health care reform case.

No. Justice Thomas' wife =/= Justice Thomas. Justice Kagan = Justice Kagan.

Justice Thomas and his wife are the same fiduciary unit. Justice Thomas' wife's financial interests = Justice Thomas' Financial interests.
 
TITLE 28 > PART I > CHAPTER 21 > § 455

§ 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;

(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
United States Code: Title 28,455. Disqualification of justice, judge, or magistrate judge | LII / Legal Information Institute

The argument that Justice Thomas wife is not the same does not hold water when it comes the Canon of ethics, having said that,


The Supreme Court is not bound by the code of conduct for federal judges, but justices have said they follow it voluntarily. Justice Clarence Thomas, however, does not appear to believe that he needs to adhere to those rules.

The code says judges “should not personally participate” in raising money for charitable endeavors lest donors feel pressured to give or feel entitled to special treatment if they do. Judges are not supposed to know who donates to projects honoring them.

http://www.nytimes.com/2011/06/23/opinion/23thu4.html

So is this more or less a violation of the Canon of ethics , yes, do Supreme Court Justices have to follow them, no. So for example if Justice Keagan had wanted to sit for the Arizona case she would have had every right to do so, so to does Justice Thomas have the right under current law to hear whatever case he wishes regardless of his wifes associations.
 
Do you know what the solicitor general does? He/she represents the federal government before the Supreme Court and handles related matters. Kagan would have been involved in the lawsuit in question, and so she is now recusing herself. If you were someone's lawyer in a case, you should not become a judge for the case.

She was also involved/expressed opinions on, Obamacare. She should recuse herself from hearing that case as well.

Why exactly?

And Scalia should have recused himself from several cases..including Gore v. Bush..for numerous reasons.

That was not done. And Supreme Court justices are under no obligation to recuse. It's more of an "Honor system."

Yes, Scalia should have, most likely. However, I was not discussing those issues. Feel free to start a thread on them and we can discuss them at length. This thread is about Kagan.

Kagan should recuse herself from Obamacare deliberations | Washington Examiner
As Senate Minority Leader Mitch McConnell and three of his Senate Republican colleagues wrote in a Nov. 18 letter to Attorney General Eric Holder, a justice should withdraw from any case in which he or she "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 or controversy." The law further stipulates that recusal is appropriate whenever a justice's "impartiality might reasonably be questioned."

As McConnell and his three colleagues - Sens. Jon Kyl of Arizona, Charles Grassley of Iowa and Mike Lee of Utah - point out to Holder, recently released emails suggest that Justice Elena Kagan's involvement as U.S. solicitor general in the Obama Administration "may satisfy both requirements for recusal."

She expressed opinions on Obamacare. Her impartiality is reasonably in question.
 
So what is the difference between the immigration bill and Obamacare?
Someone care to explain why she recused from immigration but not Obamacare both of which she worked on!
Rather than whining about it why don’t you research the issue and report back to us with facts and the law in support of your argument that she should recuse. Otherwise your motive is political only, not legal.

She may have recused herself from the AZ case so that her refusal to recuse from the far more important "Obamacare" case, would be viewed more favorably by the public. If so, it's a brilliant PR move.

We'll see what happens....Personally, I think she needs to recuse from both cases.

As a partisan rightist, of course you do. But as with the OP, do you have any facts or evidence to back that up?
 
She was also involved/expressed opinions on, Obamacare. She should recuse herself from hearing that case as well.

Why exactly?

And Scalia should have recused himself from several cases..including Gore v. Bush..for numerous reasons.

That was not done. And Supreme Court justices are under no obligation to recuse. It's more of an "Honor system."

Yes, Scalia should have, most likely. However, I was not discussing those issues. Feel free to start a thread on them and we can discuss them at length. This thread is about Kagan.

Kagan should recuse herself from Obamacare deliberations | Washington Examiner
As Senate Minority Leader Mitch McConnell and three of his Senate Republican colleagues wrote in a Nov. 18 letter to Attorney General Eric Holder, a justice should withdraw from any case in which he or she "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 or controversy." The law further stipulates that recusal is appropriate whenever a justice's "impartiality might reasonably be questioned."

As McConnell and his three colleagues - Sens. Jon Kyl of Arizona, Charles Grassley of Iowa and Mike Lee of Utah - point out to Holder, recently released emails suggest that Justice Elena Kagan's involvement as U.S. solicitor general in the Obama Administration "may satisfy both requirements for recusal."

She expressed opinions on Obamacare. Her impartiality is reasonably in question.

Well when you start a thread about when someone should do something or not..you have to look at the history of the "problem".

Using Scalia as a template..Kagan is not under any obligation, by conservative standards..to recuse.

Careful what you wish for.
 
So what is the difference between the immigration bill and Obamacare?
Someone care to explain why she recused from immigration but not Obamacare both of which she worked on!
Rather than whining about it why don’t you research the issue and report back to us with facts and the law in support of your argument that she should recuse. Otherwise your motive is political only, not legal.

She may have recused herself from the AZ case so that her refusal to recuse from the far more important "Obamacare" case, would be viewed more favorably by the public. If so, it's a brilliant PR move.

We'll see what happens....Personally, I think she needs to recuse from both cases.

As a partisan rightist, of course you do. But as with the OP, do you have any facts or evidence to back that up?
It's just my opinion about her motives for recusing in the AZ case. As for the reasons for her to recuse- IMHO, if there is any appearance of conflict, a judge should recuse. Kagan was the Solicitor General when Obamacare was passed. It looks like a conflict to me.
 
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I'm not really sure why anyone could even imagine that she'd recuse herself (from the health care issue). It seems certain that this was discussed when Obama was considering her appointment. Why would he appoint a judge if he wasn't certain that she would rule, and rule in his favor, on the flagship legislation of his administration?

Sure, she shouldn't rule on legislation that she helped form. But then presidents shouldn't stack the court to push an unconstitutional agenda either. Regardless, that's the way it's been done.
 

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