December 12, 2011

Health Care Bad News: Kagan recuses herself. Wait, what?

Justice Kennedy's got that swing?
This is indeed bad news.  Supreme Court Justice Elana Kagan has recused* herself from hearing and a big deal case.  The bad news, is that it's not Obamacare (emphasis added);
At stake is Arizona’s goal of granting state and local police the power to check the immigration status of persons they encounter during their duties, such as traffic stops. Administration lawyers argue the state statutes infringe on what is federal responsibility to police the borders and set immigration policy.

In its notice, the court said Justice Elena Kagan had recused herself from the decision to take the case.

Justice Kagan has come under fire for not recusing herself from the decision to hear challenges to the new health care law.

She was Mr. Obama’s solicitor general from March 2009 up through May 2010, though she stopped taking part in cases in March 2010 so she would preserve her ability to hear them as a justice.

The health care law was signed in March 2010. Arizona’s immigration law passed in April 2010.
The fact that she has recused herself from this case but has been silent on the health care hearing means she's probably going to use her recusal here to defend her objectivity in the justification of not recusing herself on the healthcare decision.

It's called picking your battles. Some conservatives could learn a thing or two about the tactic. 

In any case, the straw man argument here is that the Arizona immigration recusal validates her continued involvement in the Obamacare case. It doesn't. The two have nothing to do with each other. At issue are the timelines of her previous involvement as solicitor general during the Obamacare evolution, and indeed her cheering the legislation on.  The timing noted in the excerpt above is critical to the flaw in her recusal.  The recusal on immigration should indeed mandate a recusal on the Obamacare case.

That fact is also cause for concern - if the Democrats expect her to offer a recusal on healthcare they may argue that Justice Clarence Thomas also recuse himself.  But that's a red herring argument.  The reason to have Thomas recuse himself is pretty flimsy.  But you can see the liberal machinations at work.  They must feel that they have Kennedy's vote and if they can force a stalemate on Justices Kagan and Thomas by appearing above board they must be pressing for a joint recusal on Obamacare.  If they have Kennedy's swing vote, they win 4-3  with the two recusals and they can claim the moral high ground of being first to recuse a liberal justice.
1.  Challenge (a judge, prosecutor, or juror) as unqualified to perform legal duties because of a possible conflict of interest or lack of impartiality - a motion to recuse the prosecutor (of a judge) 2.  Excuse oneself from a case because of a possible conflict of interest or lack of impartiality


  1. I don't think there's any reason for any of the justices to recuse themselves in the healthcare case. There's no evidence that Justice Kagan (or Justice Thomas, for that matter) has a conflict of interest.

  2. Clearly, we disagree. The point is moot however, she will not recuse herself.


Disagreement is always welcome. Please remain civil. Vulgar or disrespectful comments towards anyone will be removed.

Related Posts Plugin for WordPress, Blogger...

Share This