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February 04, 2011

Justice Kagan Will Not Be Recusing Herself From ObamaCare Cases

There was some chatter about the possibility that Justice Kagan would recuse herself from ObamaCare cases, making a 4-4 decision (and the messy consequences that follow) a possibility. As I wrote in comments yesterday, don't bet on it. Here's the relevant recusal statute, found by beedubya yesterday:

Twenty-eight U.S. Code 455 : "(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."

There's nothing in there that suggests a reasonable possibility of recusal when either the Virginia lawsuit or the multi-state lawsuit reaches the Supreme Court. In her job as Solicitor General, she wouldn't have participated in the healthcare cases in the ordinary course. The SG's office doesn't get involved until after a loss in the appellate courts. Before that it's the Assistant AG and Deputy AGs of whichever division the case happens to be in (for example, Civil, Criminal, Antitrust, etc.).

Similarly, she followed the practice of all current justices and "expressed no opinion" on the constitutionality of pretty much anything during confirmation hearings. I haven't seen her mention it elsewhere either.

It's possible the White House or Congress asked her advice on the healthcare law outside of her responsibilities as Solicitor General. But not probable.

Anyway, we already have a pretty good idea whether Justice Kagan will recuse herself from the healthcare lawsuits. Court watchers will recall that one of the lawsuits, Baldwin v. Sebelius, already reached the Supreme Court and she didn't recuse herself from the denial of certiorari.


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posted by Gabriel Malor at 07:44 AM

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