No Excuse Not To Recuse

I don't see how Justice Elena Kagan can hear the Obamacare court case. The law seems pretty clear that she is conflicted out:

According to 28 USC 455, a Supreme Court justice must recuse from “any proceeding in which his impartiality might reasonably be questioned.” The law also says a justice must recuse anytime he has “expressed an opinion concerning the merits of the particular case in controversy” while he “served in governmental employment.”

Before the liberals start screaming about Clarence Thomas' wife creating a conflict for him, that is not the same. The law does not apply to actions by the spouse of a Justice. I realize that won't stop them anyway, but being armed with the law and the facts is helpful when combating that predictable argument.

Comments

[Joe Guarino]

I suspect, Sam, that they are not going to concede this point graciously. They want socialized medicine badly.

If she does not recuse herself, how can that be remedied? Do opponents or the other justices have a way to deal with that?

[Spag]

I think the remedy would be impeachment of the Justice.

[Harold]

"I Hear They Have the Votes, Larry!! Simply Amazing.’"

Doesn't state an opinion and if I'm wrong the opinion must have been in a legal brief or whatever. Simply states she's amazed it got through, not that she's for or against, which I'm certain she's for because she's a Democrat. Not enough to recuse herself. No smoking gun in that email comment. If this is the criteria for recusals, emails to friends, recusals out the whazzooo.

[Roch101]

What Harold says. Pretty obvious, really.

[bubba]

"Doesn't state an opinion...."

What does it state, 'Turf?

"Pretty obvious, really."

I agree......particularly when taken in context.

She either recuses on her own, or she faces a growing call for her removal.

[bubba]

Here's some background on the need for a Kagan recusal.

Excerpt:

"As President Obama’s top advocate,Kagan headed the office responsible for formulating the Administration’s defense of PPACA—and oversaw the arguments both on appeal and in the lower courts because of PPACA’s national importance. The President is now asking her to adopt the very same positions her office helped craft for him on this matter, but this time, as a Supreme Court Justice. Her jump from advocate to judge on the same issue raises profound questions about the propriety of her continued participation in the case. Moreover, the legitimacy of any decision where she is in the majority or plurality would be instantly suspect if she chooses not to recuse herself. To use a sports analogy, would anyone trust the outcome of a close game where the referee had been a coach for one of the teams earlier in the game?"

[Spag]

Thanks Bubba. Kagan's involvement was much more than an email. That was "pretty obvious" to anyone following the story.

[Joe Guarino]

Can anything be done beforehand to prevent her from participating? Impeachment, I presume, would be after the fact; and would therefore not prevent her participation?

[Harold]

The Solicitor General's office more than likely would have to argue the PPACA case before the Supreme Court at some time in the future, Thus, yeah, my office needs to be in the know and our input is necessary in order to win the case for our boss, the President. Not her opinion. A requirement of her office to help win cases in front of the SC. SJ's don't argue cases based on their beliefs but at the direction of their boss. Just as I'm certain W's Ted Olsen would have argued before the Supreme Court the marriage between man and woman only thing, even though it's now very evident he feels strongly respecting the merits of gay marriage, as I'm certain he did when employed by W.

Kennedy will be the deciding vote. SC could trash Obamacare completely or not. SC could trash parts of it and leave others intact.

[Jim Buie]

By your stringent standards, Thomas and Scalia would also have to recuse themselves from the case. Click.

[Spag]

It isn't my "stringent standards", it is the law. If you actually read it and apply the "facts" you cite, you will see that Thomas' and Scalia's actions do not fall within the acts that require recusal.

The law isn't whatever we want it to be and every word has meaning.

[bubba]

"The law isn't whatever we want it to be and every word has meaning."

Ah, but that doesn't matter to people like Buie, who reserve the right to twist words and their meanings into serving their worldview agenda first and foremost.

You will notice neither Buie or the 'Turfmaster choose to address the legal points raised in Severino's work. Her points were clear, concise, and devastating to Kagan's refusal to recuse. The excuses provided by 'Turf, the Slimes, and Buie are irrelevant.....as usual.

[Roch101]

Who farted?

[Jim Buie]

“The justices were wining and dining at a black-tie fundraiser with attorneys who have pending cases before the court. Their appearance and assistance in fundraising for this event undercuts any claims of impartiality, and is unacceptable.” -- Bob Edgar, the president of Common Cause.

Friedman: “Thomas should recuse himself because his wife is a lobbyist for groups that are opposed to the health care law. She has brought in a lot of money in family income opposing the health care law, ” he said. “Thomas has a financial family interest in the success of the opposition to health care.”

The end of
the article discusses why the standards for recusals by Supreme Court Justices are different from lower-court justices.

Not that I would expect Sam to take an even-handed approach to this issue.
Hypocrisy and double-standards, while accusing others of being hypocritical and having double-standards, are his trademark. In his hyper-partisan little world, only liberals are hypocritical, have double standards, and oh yeah, only liberals are, to use his favorite word, "dishonest."

[Spag]

I will say it again, every word has meaning. Read the statute.

[bubba]

"I will say it again, every word has meaning. Read the statute."

Why bother, as long as there are irrelevant points to be made?

[Jim Buie]

No doubt in Sam*s world, James Sample, a law professor at Hofstra University School of Law who studies recusal issues, is dishonest because he doesn't take Sam's hyper-partisan, simplistic approach. He says the outside groups’ calls for liberal and conservative justices to recuse themselves from the health care case are misplaced.

“I am generally one of the most pro-recusal scholars you can find, and yet I think in this instance those who are trying to argue for the recusal of Justice Kagan and Justice Thomas alike are opportunists who are trying to use a mechanism that just doesn’t fit,” he said.