Republicans want to know if Elena Kagan will recuse herself from challenges to Obamacare
All seven Republicans on the Senate Judiciary Committee have sent a letter to Elena Kagan asking her if she has discussed the several states lawsuits to Obamacare with the Obama regime, and if she has, will she recuse herself from any of the challenges when they reach the Supreme Court.
If she has had discussions with the Obama regime regarding these lawsuits then federal law could require her to recuse herself from any trial on this issue. Federal law 28 U.S.C. 455 states that “a justice who formerly was a government employee is disqualified from ruling in any case where she expressed an opinion concerning the merits of the particular case while in government employment.”
When Elena Kagan filled out her questionnaire before the Senate committee hearings she stated that if confirmed, “I would recuse in all matters for which I was counsel of record. I would also look to the letter and spirit of the Code of Conduct for United States Judges (although it is not formally binding on members of the Supreme Court of the United States), the Ethics Reform Act of 1989, 28 U.S.C. 455, and any other relevant prescriptions. I would also consult with my colleagues in any case where recusal might be advisable.”
So the question now being asked by Republicans is, did Elena Kagan consult with the Obama regime on the pending lawsuits in regards to healthcare reform, and if she did, will she recuse herself from the hearings?
With the news that Republicans have managed to delay her committee vote by one week so they can more thoroughly review her records it seems like this is a perfectly legitimate line of questioning and she should answer these questions.
Will her words match her actions, or– much like Barack Obama– will her rhetoric not quite live up to her actions? In her questionnaire she mentioned that this law was not binding when it came to Supreme Court justices; that is her qualifier, and when she wrote that qualifier there is a probability that she had this very topic in mind, but she also stated that she would adhere to the spirit of the law, and that she would recuse herself from ANY matter in which she was a “counsel of record.”
In my mind the spirit of the law would dictate that she should recuse herself from this case if she did indeed have contact with the Obama regime about the lawsuits. But even if the law doesn’t require her to recuse herself from this case, she stated that she would recuse herself on ANY matter in which she was a counsel of record. If she was a counsel of record on this issue, we should be able to reasonably expect that she would remain true to her word and recuse herself from this case.
It will be interesting to see how she answers this question; if she states that she was not involved in discussions with the Obama regime on this topic, than the question is null and void, but if she did have conversations with the president she should be true to her word– whether required by law or not– and recuse herself from this case. For if she does not, she will not have remained true to her word before she was confirmed, how can we expect to take her at her word after she is confirmed?
America's Watchtower 
You make some interesting points I really haven’t thought about. I have little faith in what these future justices say before the Senate committees. It all seems like smooth double talk without committing to anything in the end. Personally I think the hearings are useless. There should just be a up or down vote on the record of the person appointed! Maybe I’m missing something!
LikeLike
These hearings do seem to be a waste of time, in the end they always get confirmed. Of course in this case their can be know up or down vote on her record– she has none!
LikeLike
Good post Steve. I tend to agree with you that the hearings are a waste of time but I do think the question deserves an answer. Unfortunately I also agree that the answer may not be worth the paper it is written on. Even if she says she’d recuse herself she would be under no obligation to honor that commitment. She’d probably argue that every future health care related case coming before the Court will have some connection to Obamacare and she cannot and should not be required to recuse herself from every such case for the next 20 years. As to your final point in your comment I don’t accept the criticism that she has no record even though I’m not a particular fan of hers. Many justices are on the record as saying there should be appointees without judicial background and who knows better than them the requirements of the job.
LikeLike
Her answer probably won’t be worth much, I think you are right she will not recuse herself from every healthcare issue that makes it to the SC over the next several years.
I shouldn’t have said no record, what I should have said was slim record.
LikeLike