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When A Justice And A Case Are Too Close

Publication Date: 
July 24, 2010
The New York Times
Adam Liptak

Thomas Goldstein, a Lecturer in law, is quoted in the New York Times about Senate Judiciary Committee members asking Supreme Court nominee Kagan to recuse herself from any challenges relating to health care law:

With a full Senate vote expected soon, Elena Kagan’s confirmation to the Supreme Court is all but assured. But that does not mean her presence will be fully felt when the court returns in October. Ms. Kagan has identified 11 cases in which she would step aside because she worked on them as solicitor general. That amounts to more than a quarter of the cases on the calendar so far — including the very first argument and three of the first four. Yet those absences will not end the debate over when Ms. Kagan and other justices should recuse themselves. If anything, her confirmation hearings only highlighted how vague the standards for recusal by Supreme Court justices are.

Seven Republican members of the Senate Judiciary Committee pressed Ms. Kagan to promise that she would recuse herself from any challenges to the new health care law. Ms. Kagan would not bite, responding on Monday that she had nothing to do with the legislation, or a lawsuit challenging it. Nor, she said, had she ever expressed an opinion about either one. Ms. Kagan said only that she would carefully consider the matter if it arose, “consulting with my colleagues and, if appropriate, with experts on judicial ethics.”


But that kind of cynicism could apply to the senators who suggested their votes depended on Ms. Kagan’s promise that she sit out the health care case, said Thomas C. Goldstein, a lawyer with Akin Gump Strauss Hauer & Feld and the founder of Scotusblog.

“It was really an attempt to leverage the confirmation process,” Mr. Goldstein said. “You can’t try and use recusal to manipulate the outcome of cases.”

In his 1972 statement, Justice Rehnquist said recusal involved a delicate balance.

“Proof that a justice’s mind at the time he joined the court was a complete tabula rasa in the area of constitutional adjudication,” he said, “would be evidence of lack of qualification, not lack of bias.”