Archive for November 15th, 2011

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.

Kagan punctuated the first sentence of this email to Tribe with two exclamation marks: “I hear they have the votes, Larry!! Simply amazing.”

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.


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.


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.

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