Unnecessary Roberts recusal in Hamdan case enhanced terrorist rights

In her confirmation hearing last week, Supreme Court nominee Elena Kagan agreed to recuse herself from hearing or deciding any appeals of cases she has worked on as President Barack Obama’s Solicitor General.

But what about legal challenges to ObamaCare?:

Constitutional questions about the health-care law, including its requirement that most Americans obtain insurance or face a fine, were raised in the months before President Barack Obama nominated Ms. Kagan to the court. Several states have filed suit to try and stop it.

“It is all but inconceivable that, when the states challenged the new health care law in March 2010, Ms. Kagan did not participate as counsel or adviser to the administration on the matter, or express her opinion on the case’s merits at that time,” Sen. Jeff Sessions (R., Ala.), the top Republican on the Judiciary Committee, said Tuesday.

Mr. Sessions and the six other Republicans on the Judiciary Committee sent Ms. Kagan a letter asking detailed questions about her involvement in discussions around the law. She was asked briefly about the matter during her confirmation hearings, and replied that she hadn’t expressed an opinion on the merits of the legislation.

DeVine Law Factory rarely disagrees with Lawyer Sessions, but recusals seems to be one of them, and we admit that our position is not in the “mainstream”.

We would not even ask Kagan to follow in the footsteps of the last Solicitor General to be appointed to the nation’s highest court, here former boss Thurgood Marshall who recused himself from 40% of all cases heard by the court his first two terms.

Grounds for recusal

There are essentially four categories of cases that have been raised as grounds for recusal in Common Law, as well as state and federal law: personal interest, prior advocacy of client in court, participation as judge in lower court, and prior non-court  advocacy of issue.

Judges have essentially self-policed themselves in most cases in our history, with many going overboard, in my view, on the side of recusal if there is any question raised.

The easiest decisions are those that involve oneself, family, friends and direct pecuniary interests. But even in this category, many judges recuse on very indirect monetary interests (e.g. as with cases involving companies they have invested in).

Ethical standards demanding even the “appearance of impropriety” have driven broad recusals, but DeVine Law thinks this standard gives too much power to those opposing one’s judicial philosophy. This is especially so when it comes to the remaining categories of cases that often involve not only the law and judicial philosophy, but also substantive policy preferences.

Recusal standards are too broad

Theoretically and given the Oath to uphold the Constitution and only interpret laws, a justice’s substantive policy preferences should not enter into their deliberations evaluating the constitutionality of ObamaCare or any other law. Of course, human nature being what it is; the liberal embrace of a “living constitution” being what it is; and the history of non-originalist/plain meaning judicial interpretation being what it has been, we know how Kagan will vote on most all constitutional cases.

These are not grounds for recusal on ObamaCare challenges, nor is the underlying reason for recusal, i.e. personal interest in policy preferences. I would add that I don’t think the desire to be affirmed should require recusal in cases argued in courts below nor in cases one participated in as a judge.

As to the latter category, one of the worst decisions made by Chief Justice John Roberts was his recusal from the Hamdan, terrorist rights case because he had voted with the D.C. Court of Appeals majority decision that was being appealed. Roberts recusal resulted in a weakening of executive war powers that could haunt us for decades.

Recusals hurt conservative opportunities to protect the Constitution

Nominees to the Supreme Court are chosen to a large extent precisely for how they will rule on such consequential cases. That Roberts ruled certain ways in lower court cases are part of his resume for why he should be a justice in the first place.

Kagan has no judicial record. She has a political advocacy record and a legal advocacy record for the “United States” as her client. Yes, she has an ethical obligation to set personal preference aside and rule on the law. Yes, it would be better if she and Ginsburg, Breyer, Sotomayor, and even Kennedy recused themselves from every case!

Liberals do not follow their Oath in any event. They are put on the court to re-write the Constitution so that liberal laws that can’t pass majority support most anywhere on the Fruited Plain.

But using broad recusal rules that end up being applied to conservatives that rule correctly but are denied that duty, are not the way to correct the problem of judicial activism.

Defeating liberals and Democrats running for President and the U.S. Senate is the way to fix the problem.

[Cross-posted at 73Wire Law Factory]

Mike DeVine

“One man with courage makes a majority.” – Andrew Jackson

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