Res Judicata: The Case for Kagan’s Recusal

November 28th, 2011 at 12:02 pm | 49 Comments |

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The Solicitor General of the U.S. (a position Elana Kagan held in 2010) is the government’s advocate in every case heard in any federal court. Typically the Solicitor will personally argue some cases in the Supreme Court. He or she will certainly be involved with any case that challenges the constitutionality of a federal law.

This is not to minimize the role of the Attorney General, who is also involved in many cases of constitutional import, but the Attorney General does not personally stand up in the Supreme Court and make the argument for the United States. The Solicitor General does so, and must be able to respond to questions from the justices about how the argument he or she is making might differ from prior arguments the government has made in previous cases. “Well, Madam Solicitor,” a justice is likely to ask, “today you’re here asking us to take a narrow interpretation of sec. 44 of the law, but last month you signed a brief in the Fourth Circuit asking that Court to take a different view of the same section, right?” And the Solicitor General has to explain why in a persuasive manner that shows enough intellectual consistency so as to enunciate a workable rule of decision that can apply to the current and future disputes.

It was widely reported at the time of her appointment as Solicitor General that Elana Kagan had never argued a case in any court. She had spent her entire legal career as an academic. So the legal world paid more than the usual amount of attention to the few cases that she personally argued in the Supreme court. By all accounts, she performed solidly. This reassured skeptics that she could make the transition from teacher to advocate.

Upon her confirmation, Justice Kagan recused herself from dozens of cases that came up to the Supreme Court because she had participated in them in some way while Solicitor General. The participation requiring recusal from a case by a former government employee can be as minimal as “expressing an opinion concerning the merits of the particular case or controversy.” 28 U.S.C. sec. 455(b)(3). It seemed at the time of her recusals that she was erring on the side of recusal when the question was close.

We rarely get a glimpse of the inner workings of the Solicitor General’s office. So we cannot know for sure what she personally said or did in any particular case to warrant recusal–until now, with the Patient Protection and Affordable Care Act.

Based upon Freedom of Information Act requests by Judicial Watch and other groups, emails have been made public in which Justice Kagan expressed glee in 2010 at the passage of the law, asked to be kept in the loop in all Department of Justice strategy sessions concerning the law and two months before being appointed to the Court actually read a Complaint filed in a federal court challenging the constitutionality of the law and weighed in with her response. We don’t know precisely what her response was, but we don’t need to know.

Can anyone seriously doubt that she has “expressed an opinion concerning the merits of the particular case?” She needs to recuse herself from the health care case if she is maintain her integrity. There has not been such a clear case for recusal in years. In fact I can’t think of one.

In 2004 the Sierra Club and the entire liberal legal establishment demanded, unsuccessfully, that Justice Scalia recuse himself from a case because he had gone duck hunting with Vice President Cheney. The implication was that they had discussed a particular case on his trip. Justice Scalia took the matter quite seriously and wrote a strongly worded defense of his decision not to recuse pointing out that he had not actually discussed the matter with the Vice President, and the two had not shared a single duck blind on the trip. This might sound ridiculous today, but it was important to air this publicly so that the people have confidence in the independence of the justices.

Justice Kagan will have to formally account for her actions as Solicitor General in a similar manner. The case for recusal is so strong and so obvious that her failure to do so will not be accepted by the public. Needless to say, her recusal, or non-recusal, could be the decisive factor in the biggest case of the century (thus far). But she promised in her confirmation decision not to shirk from her obligation to recuse herself when necessary.

Recent Posts by Howard Foster



49 Comments so far ↓

  • ottovbvs

    Groundhog day again.

  • Justices Kagan and Thomas Should Recuse Themselves – Huffington Post | News Reporter Online - Daily News Magazine

    [...] NewsHealth-care case brings fight over which Supreme Court justices should decide itWashington PostRes Judicata: The Case for Kagan's RecusalFrumForumWashington Examiner -Examiner.com -Medical Dailyall 241 news [...]

  • Nanotek

    an interesting argument …

    are all conservatives predisposed to selective reading and moral relativism ?

    28 U.S.C. sec. 455(b): (b) He shall also disqualify himself …(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding…

    http://www.nytimes.com/2011/01/20/us/politics/20koch.html

  • Justices Kagan and Thomas Should Recuse Themselves – Huffington Post | News Blitz Weekly - Daily News Magazine

    [...] NewsHealth-care case brings fight over which Supreme Court justices should decide itWashington PostRes Judicata: The Case for Kagan's RecusalFrumForumWashington Examiner -Examiner.com -Medical Dailyall 241 news [...]

  • Justices Kagan and Thomas Should Recuse Themselves – Huffington Post | Just Top News – Daily News Magazine

    [...] NewsHealth-care case brings fight over which Supreme Court justices should decide itWashington PostRes Judicata: The Case for Kagan's RecusalFrumForumWashington Examiner -Examiner.com -Medical Dailyall 241 news [...]

  • HighCountry

    How the author could write this piece while ignoring Clarence Thomas’ flagrant conflicts of interest is incomprehensible and idiotic.

    • icarusr

      Perfectly comprehensible. The author is, presumably, Republican and self-described “conservative”. The first means all-out war on Democracts regardless of issue; the latter means selective moralising and rank hypocrisy.

    • Chris Balsz

      The partisan Democrat “standard” that bias must be imputed to a judge based on spousal income and/or interest is one that federal judges have refused to accept for themselves at every level. When you start denouncing appellate and circuit court judges because their spouses earn six-figure salaries in the private sector, we’ll know you have some substantial argument about judicial ethics.

      • Watusie

        I don’t give a rat’s ass if judges’ spouses earn seven-figure salaries in the private sector.

        I’m very interested if a judges’ household income is increased by a company lobbying on one side or another of a case he is hearing by even so much as one thin dime.

        • blueshark

          Watusie’s point precisely. A judge is required not only to disclose the amount of her spouse’s income, but also its origin. If a judge’s spouse (and consequently the judge’s household) is receiving large sums from a source that stands to benefit from a judge’s decision, that is a pretty clear case for a conflict. I maintain that a group that opposes the ACA and is pouring money into Justice Thomas’ household creates more than the threshold level of the appearance of impropriety.

          As for the article, we’ve had this discussion re Kagan before. And like just about everything else this author writes, his argument is without merit. Kagan expressed a political opinion while she was SG – something she had a right to do as a citizen (try and find someone who has not ever expressed an opinion on politics). She was not part of the legislative process. She was not part of the White House OLC or the DOJ OLC or the legal staff of anyone on the Hill. And, horrors, she even read a complaint filed in a district court (anyone can do this online)

          The real question here is whether Kagan stands to benefit personally from her actions in this case. And I just don’t see how she stands to do so. The argument that she benefits from upholding the constitutionality of the ACA because it advances a liberal agenda is simply too nebulous to survive any sort of scrutiny (you could say that about any of the Justices: Scalia has an originalist agenda; Breyer has a “living constitution” agenda). Moreover, Kagan as SG did not participate in defending against any of the legal challenges to the ACA. If she had argued, or helped prepare, the cases in the courts below, I’m fairly confident she would have recused herself (as did CJ Roberts when he went to the Court). Such is not the case. She expressed pleasure that the ACA had the votes to become enacted. Not enough for a COI there.

          I attempt to be civil and respectful in this forum, but I have yet to read one of Foster’s legal arguments here that I would rate better than a C-.

        • Chris Balsz

          “If a judge’s spouse (and consequently the judge’s household) is receiving large sums from a source that stands to benefit from a judge’s decision, that is a pretty clear case for a conflict.”

          Not according to the judges themselves. They draw a distinction between what the judge himself has done, and what the spouse does.

          If you think that’s bogus and should be reversed, all down the line, that’s a respectable argument.

          I just happen to notice that most people complaining about Thomas’ household income have no such intention; they just want to attempt to “cancel out” Kagan’s own conflict by saying Clarence Thomas ought to recuse himself (too?), and if he won’t , it’s apparently better to have 2 judges with conflicts than none or one.

        • blueshark

          What judges? When and where? Source please. If you mean the Justices of the Supreme Court, you’re correct, the Canons of Conduct are not officially binding. But they do form a well-delineated guide to ethical behavior for judges and the appearance of conflict of interest. Not enforceable, perhaps, but ethical (and for the record, I think they should apply to SCOTUS as well).

          Canon 2 of the Code of Conduct for United States Judges (“A Judge should avoid impropriety and the appearance of impropriety in all Activities”) states, in relevant part, that:

          B) Outside Influence. A judge should not allow family, social, political, [i financial, or other relationships to influence judicial conduct or judgment. A judge should neither lend the prestige of the judicial office to advance the private interests of the judge or others nor convey or permit others to convey the impression that they are in a special position to influence the judge.

          I think with respect to J. Thomas, there is the appearance of a family and financial conflict of interest here.

        • Chris Balsz

          For a discussion of recusal by the Bush DOJ, with cites to relevant cases if you want to find those, http://www.justice.gov/eoir/efoia/ocij/oppm05/05-02.pdf

    • Graychin

      “…incomprehensible and idiotic.”

      Also incredibly, shamelessly hypocritical. Breathtakingly hypocritical!

      How would you like for your lawsuit to be tried by a judge whose wife works for your opponent? Even if her work is uncompensated?

      Thomas, Scalia and Alito have all been very outspoken about their “personal bias” with respect to the ACA. But that doesn’t count. They are “conservatives.”

    • ChairmanLMAO

      It’s perfectly understandable if you’re an amoral right-wing shill.

  • SteveT

    Let’s say Kagan did recuse herself (she won’t and neither will Thomas) and the court is split 4-4. Will the ACA be in force in some parts of the country and not in others? That sounds like a nightmare.

  • Frumplestiltskin

    Yeah, I am sure Kagan will read this garbage and say “hey, he is right, I will recuse myself”
    I didn’t read the article because it is utterly pointless, outside of impeachment there is no way to remove her from the case so whine away hack.
    And no, there is no reason for her to recuse herself. She didn’t write the bill. There is no evidence whatsoever that leads one to state she can not render a verdict based on the facts of the case, none whatsoever.
    Foster would, I suppose, state that any Judge who votes for any Democrat ever must recuse himself from everything since they are biased in favor of Democrats, but this is not the case with voting for Republicans because Republican equals Jesus, and Goodness and whiteness (oops…I mean racial purity…is that ok?)

  • Watusie

    Nice to see that Foster has signed on to the national campaign by rightwingers to spread absolute nonsense and lies about this issue.

    Foster, you write “The case for recusal is so strong and so obvious that her failure to do so will not be accepted by the public.”

    This despite the fact that you have totally failed to set out a strong or obvious case.

    I ask again: do you post here under your real name? Because you appear to be one of the worst lawyers I’ve ever come across.

  • Justices Kagan and Thomas Should Recuse Themselves – Huffington Post | Financial News

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  • TerryF98

    Three Words.

    Justice Thomas (corrupt).

    And a picture summing up Balsz and his opinions.

    Balsz, just one big fail.

  • Rabiner

    The standard in which the author wishes to impose on Kagan is pretty outrageous. If you take it to the Nth degree it states that any time a person has publicly stated a position on an issue that they cannot then rule on the legal merits of a case regarding that issue. How could we ever have another Supreme Court Justice who had previously been a politician like former California Governor Warren or President Taft to became a Justice?

  • Justices Kagan and Thomas Should Recuse Themselves – Huffington Post - Financial News | Financial News

    [...] NewsHealth-care case brings fight over which Supreme Court justices should decide itWashington PostRes Judicata: The Case for Kagan's RecusalFrumForumWashington Examiner -Examiner.com -Medical Dailyall 241 news [...]

  • bdtex

    Pretty weak case you make there Mr. Foster.

  • valkayec

    Mr. Foster, there is as much a case against Justice Thomas as their is against Justice Kagan.

    Here is an excerpt of a WaPo story on this issue that has so many Republicans gnashing their teeth.

    “Kagan was notified by the White House in March 2010 — just before the law was passed — that she was under consideration to be named to the high court. She said during her confirmation hearings that she played no role in preparing for the inevitable legal challenges that were to come.

    “I attended at least one meeting where the existence of the litigation was briefly mentioned, but none where any substantive discussion of the litigation occurred,” Kagan said in a written response to questions from Republicans on the Senate Judici­ary Committee.

    She said she had never been asked her opinion about the underlying constitutional and legal issues in the lawsuit or reviewed government documents filed in the case. Similarly, Attorney General Eric H. Holder Jr. said lawyers went out of their way to keep from involving Kagan in the discussions.

    But congressional Republicans say e-mails released to conservative groups under public records requests raise questions about the White House’s contention she had been “walled off” from discussions about the health-care act. One e-mail from then-Deputy Solicitor General Neal Katyal says Kagan wanted to make sure her office was involved in strategy decisions, although Katyal said he took the lead and Kagan was not involved.”

    http://www.washingtonpost.com/politics/health-care-case-brings-fight-over-which-supreme-court-justices-should-decide-it/2011/11/22/gIQAwRWb2N_story.html

  • ChairmanLMAO

    If this slender reed is enough to warrant Kagan’s recusal, then the author should certainly be calling for Clarence Thomas’ recusal as well. After all, he and his wife are direct beneficiaries of health insurance industry largesse, and she campaigns vocally and often for the repeal of health reform.

    I’m sure Mr. Foster’s column about Thomas’ need to recuse himself will be coming shortly, right?

  • Solo4114

    My advice:

    Don’t hold your breath on anyone recusing themselves on either side of the political aisle.

  • andydp

    Counselor Foster:

    Your argument is about as cogent as Louis Tully’s (Rick Moranis) in Gostbusters II.

    Faced with the baggage that Justice Thomas has in this issue (Mrs Ginny Thomas and about $ 600K in payments) I’d say the GOP side needs to very quietly let the matter drop.

    Seriously, you want to recuse Justice Kagan for some “paperwork” issue; yet you feel its OK for Justice Thomas to hear the case despite having gotten a large financial benefit from the adversaries of the issue. Also take note Justice Thomas “did not know” about reporting his wife’s income for six years. Do you and the GOP really want that to get broadcast over and over ?

  • baw1064

    By that standard, would Thurgood Marshall have been required to recuse himself from all cases involving desgregation?

    • Graychin

      Great point.

    • chephren

      By the standard suggested in the post (Kagan was the government’s chief advocate at the time the health law came into effect, therefore she may be in conflict judging cases on behalf of the government), Marshall would have had no cause to recuse himself in any case touching on Brown v. Board of Education. He argued the case as chief counsel for the NAACP, not as a government lawyer.

      Marshall argued more cases before the Supreme Court than any lawyer in US history. As counsel for the NAACP, he argued 32 cases and won 29.

      There should be no need for a judge to automatically recuse himself on any issue he dealt with in private practice. This is overkill. Conflict arising from advocacy as a government lawyer is another matter.

      As Solicitor General under LBJ, Marshall argued 19 cases on behalf of the government before the high court, winning 14.

      During his first term as Supreme Court justice, Marshall (the last Solicitor General to be named to the Court before Kagan) actually recused himself from more than half the cases – 98 out of 171 – the Court dealt with. Kagan has so far recused herself more than 25 times.

      If Kagan recuses herself from a judgement of the health reform law, this will be in keeping with the custom that she avoid conflict, and with the probity shown by Marshall in his conduct on the Court.

      If her recusal is followed by a tie vote by the Justices, the decision of the lower court, in favor of health reform, will stand.

      Thomas will be wise to show the same probity and willingness to avoid conflict (both in appearance and substance) that conservatives now urge on Kagan. His conflict, derived as it is from the actions and substantial unreported income of his wife, is personal and spousal, as opposed to professional. It is no less serious and must be avoided.

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  • balconesfault

    The participation requiring recusal from a case by a former government employee can be as minimal as “expressing an opinion concerning the merits of the particular case or controversy.” 28 U.S.C. sec. 455(b)(3).

    Let’s look at the full language of the clause referred to:

    (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;

    The question – which Mr. Foster either wishes us to ignore, or is simply too poor a lawyer to pick up in the midst of his haste to condemn – did Ms. Kagan express an opinion in her capacity as a government employee? Since “expressing glee” was probably not part of her job description, I would say no.

  • bdtex

    The commenters have picked your case apart.

    • balconesfault

      I do wonder at times if it’s becoming harder for Frum to find conservatives to write opinion pieces here.

      If you write for NRO, or WSJ Online, or the like, you are protected either by boards with such a low signal to noise ratio in the comments that nobody serious bothers to read the responses to your article, or by editors who screen out commentary that challenges false assumptions or bad logic so long as those assumptions and that logic buttresses the GOP position.

      But you come here, and you have a handful of commentors – many of us who are former Republicans wishing for a party we could vote for once again, or at least a party which is centrist enough to be a positive force in helping craft a balanced legislative agenda – who pick bad work apart … some with a surgeons scalpel, some with a broadsword. But just reciting GOP cant doesn’t persuade anyone. That must be a very frustrating experience for someone who doesn’t have the stones to want to defend their thinking against aggressive and well-informed interlocutors who don’t read from the same playbook as your average conservative partisan.

      • armstp

        It is just clear as day when FF authors write posts through an extreme political lens that the facts and logic usually get in the way. Most right-wing posts/opinion pieces and most non-opinion pieces do not stand up to the scrutiny of even the most basic facts. End of the day most “conservatives” really got nothing. They just rely on the lowest common denominator of the masses.

        I certainly appreciate a good strong well thought-out “conservative” argument, but what I cannot stand is all the lying. The screen shot from FOX above is a good example of the lying, which you almost never see on the “left”.

        • balconesfault

          Hell – the left tends to gang tackle bad reporting.

          Check out the response across the liberal blogosphere to the unsupported allegations by Naomi Wolf that Homeland Security was coordinating attacks on OWS protests around the country. Shes been savaged right and left for grabbing headlines with no factual evidence.

          And this would have been a perfect example to support the liberal narrative of “massive agency attacking citizens who are challenging the system of government protecting wealth”. And it’s not just about covering Obama’s derriere … because many of these same liberal outlets have attacked Obama over giving too much to the bankers, for going too far in prosecuting medicinal marijuana use, for many failures to push a populist agenda.

          The simple fact is – liberals in general like to challenge authority. Conservatives are deferential to authority. And these days the primary authority for Conservatives is Fox News and Limbaugh.

  • jamesj

    This piece is poorly thought out. It sets an impossible standard and misinterprets the usual legal conventions regarding this issue, all the while ignoring issues for other justices at least as grave as the ones the author points out. Short-sighted partisanship like this is steadily pushing me out of the Republican party.

    “The case for recusal is so strong and so obvious that her failure to do so will not be accepted by the public.”

    Strongly disagree the case is strong (or even existent). Strongly disagree the public will be clamoring for a recusal, unless by “public” you mean “people who’s only source of information is Fox News”.

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  • Houndentenor

    It’s ridiculous to discuss this while Thomas continues to sit on the court after failing to report a $100,000 bribe from Citizens United. Demand that Thomas resign and then I’ll take you seriously in a discussion about whether or not Kagan should recuse herself in this case.

    • Chris Balsz

      So Kagan has no conflict?
      Or she does, but, it’s okay if she hears the case until another justice you think has a conflict drops out?
      Or, barring that, you think it’s okay if two judges with clear conflicts sit in on the case?

      • balconesfault

        My opinion is that there is no conflict that meets a constitutional or moral standard that would require Kagan to recuse herself. There is no evidence that in a professional capacity while working for the White House that she had a role in the ACA, and certainly the idea that she expressed a favorable opinion of the act is idiotic as a criteria for recusal.

  • josebrwn

    Having once argued the other side of a moot point is far less justification for recusal than a deeply held, openly confessed, personal and financial interest in a particular outcome. But we all know neither Kagan nor Thomas will sit this out out, don’t we?