The Recusal Borking of Justices Kagan & Thomas

The constitutional system for placing judges on the Supreme Court has been in jeopardy since the nomination of Robert Bork. The nomination of Elena Kagan was the most recent consequence of that. However good a justice she may prove to be, her qualifications were modest. She was selected at least in part because she had a very thin paper trail. It may well be that a strong record of judicial work and/or legal scholarship will in the future prevent anyone from getting past the United States Senate.

I see no way out of this situation so long as both sides see the Constitution as a political weapon as opposed to a set of rules that governs the game. We can at least make sure that political vetting is not used against judges who are actually on the Court.

Just now, both the left and the right are attempting to remove a judge from the upcoming case on ObamaCare. There is this from ABC:

Carrie Severino, a former clerk of Justice Thomas and the chief counsel of the conservative group Judicial Crisis Network called for the recusal of Kagan citing her previous job as Solicitor General of the Obama administration. Severino said Kagan's office was "responsible for formulating the administration's defense" of the health care law.

And this:

Last February 74 congressmen lead by the now-disgraced Rep. Anthony Weiner, D-NY, wrote Thomas a letter asking him to recuse himself from hearing cases on the health care reform law because of his wife's ties to a group opposing the health care law. The liberal group People for the American Way posted a letter on its website arguing "Justice Thomas' wife Ginni has earned hundreds of thousands of dollars working for and leading groups that have repealing health care reform as one of their chief goals. Considering challenges to the health care law are expected to reach the Supreme Court, that could present a major conflict of interest."

This is noxious numbskullery on both sides. I am sure that Justice Thomas has opinions about ObamaCare. I am sure I don't know whether or how he is influenced by his wife and her profession. It would be sheer speculation, not to mention implausible, to suggest that his vote in this case will have any effect on his wife's income or vice versa.

Likewise, I have no doubt that Justice Kagan was all for the healthcare reform bill when she was Solicitor General and I would guess that that is an indication of how she will vote in the upcoming case. All that means is that Kagan has opinions about ObamaCare. Having opinions is what federal judges do for a living.

There is some controversy, according to the ABC story, about Kagan's testimony before the Senate and her isolation from the healthcare legislation.

Attorney General Eric Holder … recently testified that Kagan was "physically, literally" moved out of the room "whenever a conversation came up about health care freeform legislation".

I hardly know the law here, but this strikes me as utterly silly. Kagan was Solicitor General. It was her job to defend the Administration's positions. I can see why her involvement might have been politically sensitive during her confirmation but I don't see how it constitutes a conflict of interest now. She has a new job.

It is proper for a judge to recuse herself or himself in a case where she or he has a direct financial interest. If the judge has investments with a firm that is a party to a case, that would be an example. Neither Justice Kagan nor Justice Thomas has any such interest, as far we can tell.

It would be best, as a matter of judicial decorum, if federal judges kept some distance from political activists, not to mention Congressmen and other officials. This decorum is not something they always observe. It is too much to insist that they have been innocent of political involvement in the past, or that their spouses and friends remain innocent in the present.

Those trying to force Justices Thomas and Kagan to recuse themselves from the healthcare case are trying to Bork the respective judges. They are very unlikely to succeed and that is a good thing.

Comments

[Bill Fleming]

The SCOTUS judges can only get "Borked" BEFORE they are appointed. Once appointed, only THEY have the authority to recuse themselves and, as I understand it, are not subject to any review. So your whole point is pretty much moot here isn't it, KB?

[KB]

I said "attempted Borking" and conceded that it is not likely to succeed. The Court, however insulated it is, is not immune to political pressure. It is not unreasonable to reply to bad arguments.

[Bill Fleming]

Just double checking the protocols. An "attempted Borking" would be the Congress deciding to impeach one of them for refusing to recuse, wouldn't it? i.e. The people didn't "bork" Bork, Congress did.

[KB]

We're going to have to work harder to find some disagreement. It is not inconceivable that one side could bring enough public pressure against a member of the court that he felt compelled to recuse himself. The real threat, as you note, would be impeachment if a judge did not recuse himself in a case where it was very plainly warranted.

What bothers me about the recusal controversy is that it is another example of scandal invention. I see no scandal in Kagan having worked for the Obama Administration or Gini Thomas working for conservative activist organizations. If these things came to be seen as scandals, that would be damaging to the political process regardless of what affect is has on this case.

[Bill Fleming]

So you're criticizing the partisan grumbling?

[Ken Blanchard]

I am criticizing the fact that Kagan had to recuse herself in advance. She promised to do so in any matter that she was involved in. The consequence of that is that she is now forced to break a promise. This is real stuff, not just "grumbling". I think it is absurd.

[Bill Fleming]

Why is she being "forced" KB? I don't follow your reasoning. Who is forcing her?

[Ken Blanchard]

She promised to recuse herself in any matter in which she was involved as Solicitor General. Can she really have been altogether uninvolved in the preparation of the Administrations case for ACA? If so, then she is breaking no promise, she was just prevented from doing her job back then. This is absurd. If some important case arises in which she was involved, on record, will she recuse herself then? Would you have her do that, if her vote might make the difference about something you care deeply about? I predict that the promise will go out the window. It should. She should never have had to make it in the first place.

[Bill Fleming]

Okay, I think we do in fact agree. Thanks for the clarification. Regarding her promise, there perhaps is a better argument that she felt compelled to make it than there is that she will be forced to break it.

[Akiro]

Maybe HW will be right.But as others say, the Catholic Question has beomce very interesting. Will they vote Catholic/brown (pro-integration with their own ex-slaves from South of the Border) OR to uphold the possibility of states rights over the fed.Since the Hart-Celler, with catholic involvement, THEN Kennedy saga, then insisting papacy being acknowledged as a government in its own right by getting its embassy in washington in the 80s, and so on through all this, there seems to be an awakening among them that maybe the great Empire Universality is not going to be best for their own families in the long run, and that, as much as they hate them, maybe Anglo-Saxons / protestants have a couple potentially good points and brain cells, after all. They will back Arizona. The climate's changed. On t.v., when the WASPS were eradicated from the Supreme Court, they made a big deal out of it. For awhile on t.v., all wasps heard was the law would be Catholic and Jewish (some of whom talk openly about using the Court to Create the Social REality they wish, in other words, a dictatorship).At that moment, for some people, it became apparent they were in a Catholic-Jewish Dictatorship just like how the communists and fascists always square off in Europe. very foreign to many American minds, and their own reality about it and confusions, non-translatable.

[Lucia]

jpe Interestingly, Judge Reinhart's reasons for were desimssid as absurd across right-wing media. And as much as I dislike Prop 8, I'm not sure I agree with Reinhardt's reasoning, either. But in regard to Thomas, the financial gain link is even more direct. Ginny Thomas is taking money from people who oppose health care reform mostly because they have a vested interest in the status quo. On the other hand, the ACLU's positions, which are not limited to gay rights, are based on political philosophy not financial gain. Judges have recused themselves from cases for a lot less.

[Christoper]

Border control is, under the Constitution, a feeadrl responsibility. So it's likely the SC will decide in favor of the DC gang .Fact that the feds are refusing to secure the border is irrelevant to this legal issue. The only way states will get control of their borders is via SECESSION from the DC gang. A SupremeCourt decision in favor of the DC gang will be one more reason for states to SECEDE from this destructive Jew-Globalist regime.