Justice Kagan MUST recuse herself.
This isn’t even a question.
As President Obama’s Solicitor General, Justice Kagan was an enthusiastic supporter of the health care take over, and appears to have been part of discussions among those in government planning how to respond to the inevitable challenges.
In emails received pursuant to FOIA requests, Kagan communicated with Lawrence Tribe, and could barely contain her excitement over the passage of the bill.
By itself, this might not be enough, but an email exchange between DOJ attorneys, including Kagan’s top deputy, who forwarded and included her in on the exchange on March 21, 2010, also detailed in the above-linked article makes this case closed.
By not recusing herself, Justice Kagan is violating both the law, and the Federal Judicial Code of Conduct, an act that calls her character and integrity into question.
28 USC 455 [Disqualification of justice, judge, or magistrate judge] states:
(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:(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; [Emph. Mine]
While we do not know what was said in the phone call to the deputy, or after that point, the evidence before is enough to raise questions about the Justice’s impartiality in the eyes of a reasonable third party observer, which according to the standard set forth in subparagraph (a) would be enough, but there certainly is enough to suggest an opinion and advice on the subject material, making (b) an operative standard as well.
This is not just a legal standard, however. Judges and Justices are also held to an ethical code of conduct. Two canons set forth by this code are particularly relevant.
CANON 1: A JUDGE SHOULD UPHOLD THE INTEGRITY AND INDEPENDENCE OF THE JUDICIARY
An independent and honorable judiciary is indispensable to justice in our society. A judge should maintain and enforce high standards of conduct and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.
CANON 3: A JUDGE SHOULD PERFORM THE DUTIES OF THE OFFICE FAIRLY, IMPARTIALLY AND DILIGENTLY
The duties of judicial office take precedence over all other activities. In performing the duties prescribed by law, the judge should adhere to the following standards:
(C) Disqualification.(1) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances in which:
- (e)the judge has served in governmental employment and in that capacity participated as a judge (in a previous judicial position), counsel, advisor, or material witness concerning the proceeding or has expressed an opinion concerning the merits of the particular case in controversy.
We cannot know for certain all that has transpired, and since a FOIA request had to be made to reveal what we do know, any further disclosure undertaken by the Justice and the other parties involved will be suspect. The Justice’s role and impartiality with regard to this legislation and its defense is already in question. This is why the recusal rules exist, both as a means of helping jurists from impugning their own character, and to preserve the integrity of the courts. By proceeding, Justice Kagan does great violence to both. She should have already recused herself from this matter.
I’m curious if this really meets the standard you state. Isn’t it every judge’s responsibility to set aside personal preference and judge the case based on the law (or in this case the Constitution)? Did she or does she somehow financially profit from the existence of “Obamacare”? If not, then her previously expressed support of it should not be relevant if she is to be trusted to be an honest judge.
Don’t cases get presented to the Court all the time in which various Justices have personal opinions about the case in question? Their job is to put those preferences aside and use the Constitution as a yardstick.
When libs make the case that right-leaning Justices ruled on Citizens United out of political preference, you reject that out of hand. Why such paranoia about Kagan?
Where is your concern that the activities of Clarence Thomas’ wife don’t compromise his impartiality on the bench?
Rutherford, Kagan was directly involved. The analysis does not end when you point out that there is no pecuniary motive. We have a judge that recuses himself regularly from cases involving vehicular homicide cases. His son was killed by drunk driver a few years back. I doubt he profits from sentenced handed down.
This Judge claims that he wouldn’t be influenced by that fact. Now why might this Judge recuse himself anyway?
Point taken counselor. Now what to do about old Clarence Thomas?
What’s the offense for Thomas?
R,
You’ll have to help me out here, because I don’t spend a lot of time studying the spouses of the justices. What activities of Mrs. Thomas are you talking about, and which one of the legal or ethical reasons for recusal do you think apply?
Ginny Thomas is heavily involved in the Tea Party protests which have been vocally opposed to “Obamacare”. Putting aside how unseemly it is for the wife of a sitting Justice to be so publicly politically active, we cannot help but ask what influence she has over her husband’s opinions. Her actions give Justice Thomas “one degree of separation” from the Tea Party. Like Hagan, if Thomas wanted to be squeaky clean, he’d recuse himself also.
Ok, R. I binged Mrs. Thomas and came up with this HuffPoop article:
http://www.huffingtonpost.com/jacob-heilbrunn/the-clarence-and-ginny-th_b_768976.html
So as I understand it,
(1) Mrs. Thomas called Anita Hill recently, and left a message that allegedly demanded an apology for the accusations that she made against Justice Thomas in the nomination and appointment hearings decades ago; and
(2) Mrs. Thomas founded a non-profit group that opposes the actions of this administration.
I don’t see any allegation that she ever adocated for a party or specific ourcome in any matter pending before the Court, nor does it mention any evidence of the same.
There is no allegation or evidence that Justice Thomas ever made any extrajudicial statements that called into question his impartiality in any specific matter before the court, or his wife’s direct involvement in any specific matter before the court.
The only basis for even “going there” based on what we know might be Canon 2(B),
“(B) Outside Influence. A judge should not allow family, social, political, 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. A judge should not testify voluntarily as a character witness.”
The Comment to this Canon offers no guidance as to what “family influence” might be, but as a practical matter, the canons and the law are far more concerned with the financial affairs of a judge’s family. My guess is that this is because financial influence can be independently proven and corroborated, and because of concerns that family members right to freedom and expression can be curtailed. These are rights that are unique and separate from those of the justices, who voluntarily relinquish a fair amount of these rights that others enjoy as a condition of their employment. Because the government does not employ the spouses, it cannot impose the same conditions upon them. What is more, a non-specific allegation that the non-profit is “shadowy” and “opposes Obama” cannot, and should not be a basis for recusal, as there are no specifics in evidence that can be linked to a basis for doing so.
This is in direct opposition to Justice Kagan in this matter, who clearly was in communication with the parties involved in its passage, and directly in communications with the parties responsible for formulating the legal defense of the legislation. This gives us direct involvement, investment in a deliberate outcome, and an appearance of impropriety that together, place this squarely under subsection (b) of the law, which is an unwaivable conflict.
What is more is that this conflict has ALWAYS existed, which means that it existed when the Court reviewed the writ of certiorari and when it decided to take the case. Because of this, it seems to me that she should have recused herself even from consideration, as consideration would include a review of the merits of the case.
BiW, thank you for doing my legal research for me, pro bono no less!
I cite Canon 2 (B) and hereby request Justice Thomas to recuse himself from the Obamacare ruling.
Ginny Thomas is heavily involved in the Tea Party protests which have been vocally opposed to “Obamacare”.
So she has exercised HER first amendment rights, without any endorsement or participation by her husband, and been involved with a group that expressed its “opposition” to Obamacare (and a host of other administration initiatives). The standard you seek doesn’t exist, because it would be an unlawful restraint of her political rights. If Justice Thomas were involved, if we had the same kind of PROOF of his endorsement of her positions as we have for Justice Kagan, then you would have something you can apply in this matter, but you don’t get to shut up a Justice’s spouse or force recusal of the spouse simply because you do not like what that spouse says or participates in. Your speculation about her influence over his decisions is simply not enough, nor should it be, regardless of how distasteful you find it to be.
Her actions give Justice Thomas “one degree of separation” from the Tea Party.
The fact that they are her actions, and not his mean that by both the legal and ethical standards which are in place, there is no reason for him to recuse himself.
BiW, do you know off the top how an involuntary recusal occurs in the US Supreme Court? You’ll be surprised to learn that I have never encountered it or recall it being pursued at that level.
ET, I don’t know that there is such a procedure.
But then the ideal has always been that you would have to be a jurist of outstanding character and accumen to be appointed to the court, Abe Fortas notwithstanding (and I’m guessing that with the Sotomayor and Kagan appointments, many of these dead jurists are spinning in their graves at the moment). I’m not sure I could even think of a case where it has honestly been a question before the fact.
I’m not familiar with the SCOTUS rules. I would assume that a party truly concerned and possessing the evidence that is now out there in this matter could make a motion to the court for recusal, but again, I’m not aware that it has ever come up.
I suppose that if the rest of the justices were interested in maintaining the integrity of the court, they might entertain a motion, and then vote to recuse her if she doesn’t do it herself, since they write the rules for all the other federal courts.
In addition, the legal standard is quite clear about spousal relationships and influence on the Justice:
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;
She is not a party to these proceedings, nor to my knowledge is the non-profit.
(ii) Is acting as a lawyer in the proceeding;
Nope.
(iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;
Her interest in the outcome is no different than that of at least half of the citizens in this country; there is no pecuniary benefit for her at stake in the outcome.
(iv) Is to the judge’s knowledge likely to be a material witness in the proceeding.
This is a no brainer, as the Court does not hear the testimony of witnesses in the proceedings.
I’m sorry, but there is no “there” there.
Canon 2B or not 2B, that is the question.
My pro bono attorney has given me something to hang my hat on only to rip it away again. I shall represent myself in all future disputes.
That’s not true. I already explained why 2(B) was a non-starter.
You were the one clinging to the mirage.
When libs make the case that right-leaning Justices ruled on Citizens United out of political preference, you reject that out of hand.
Actually, I missed this earlier or I wouldn’t have let it go unanswered this long.
I reject it out of hand because it isn’t TRUE. And I’ve told you before Rutherford.
http://threesurethingsoflife.wordpress.com/2010/01/29/a-professional-ethical-and-legal-problem/
While you read that, you might want to pay particular attention to the last comment as well. I’ve read the case, both the majority, and the dissent. What the court did was overturn bad law. That’s their job. They didn’t overturn a “century of law” as the SCOAMF alleged in his classless scolding session, nor did it open any floodgates to foreign corporate spending in our campaigns. The decision was clear, easily justified by existing legislation, and accurately cited the law that showed their decision was correct. It didn’t even make up law out of whole cloth the way that Roe did.
THAT’S why I reject your weak tea claim “out of hand”.
Oh yeah. The 2010 State of the Union speech. Thanks for the walk down memory lane. I forgot why this immature, lying piece of shit needs to go.
(not really. I never forgot).
I did forget this gem from Rutherford though:
“And, let me repeat, when all things are considered, I AGREE with the Court’s opinion on this.”
Seems you rejected the “libs case” out of hand too R.
As I recall, I didn’t like the consequences of the decision but I also didn’t see how the court could rule otherwise. A catch-22 for me quite frankly.