This blog originally founded by Blogger who holds a theological degree and a doctorate in Counseling Psychology. Taught Psychology for 32 years and is now Professor Emeritus. Is a board-certified psychologist and was awarded the Lifetime Achievement Award in his profession. Ministered as a chaplain, and pastored Baptist and Episcopal churches. Publications cover the integration of psychology and theology. Served in the Army, the Merchant Marines and the Peace Corps.

Wednesday, November 16, 2011

Kagan--Will she or Won't She?

 Now that the Supreme Court has finally decided to take up the constitutionality of Obamacare, our readers raised the question if Justice Kagan should recuse herself.  Reader Sarkazein begins:  If
the rules are followed as to recusion, it looks like there will be only eight judges when the Supreme court hears Obamacare.  Should She or Shouldn't She?

Reader Jack responds: Scalia and Thomas as Well

Blogger comes back:   Jack ,28 USC 455, a Supreme Court justice must recuse anytime he has “expressed an opinion concerning the merits of the particular case in controversy” while he “served in governmental employment."    Kagan said in her confirmation for her position that as Solicitor General that she did not work on Obamacare. If that is found not to be true, by law she much recuse herself.  The other justices do not fit the legal definition.

Anonymous Jack then weighs in with: (quoting Blogger)  "The other justices do not fit the legal definition."

Well, if you read 28 U.S.C. § 455, Scalia and/or Thomas could fit into the following categories:

    (a) Any justice, judge, or magistrate judge of the United States will disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

    (1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding

    (4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding

    (5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
    (iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding

Blogger concludes with:  ...Jack, First of all, thank you for the substantive comments you make on this blog. They elevate the discussion. As to recusing, I will now have to go with my own experience. I have served on many local, state, and national boards. On each of them I had to fill out and sign conflict of interest statements. The one time I had to recuse was when I was reviewing the state plans of North Carolina for the US Department of Health and Human Services. The reason was that I had sat on another board which had some input into the NC plan.

The times I did not recuse myself were on local boards which were ruling on matters which might have been construed as helping either me or my wife financially. I always made sure that neither of us was in the same business as the board was ruling on. Otherwise, I would not have served.

 I read the law as saying if you had input or if you or someone involved with you stood to benefit, then one must recuse himself. The only justice that fits the description will be Kagan if she had anything to do with crafting the legislation. Applying the law to every normal event in judges’ lives such as having lunch with someone, would make it impossible for them to do their job.

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NewGuy said...

Look at it this way Blogger....if your lawyer and my lawyer worked out a contract between us and we later had a problem and had to go to court to resolve it...

Would you want my Ex-lawyer to now be the judge?

Jack said...

And NewGuy, would you want the judge (not the ex-lawyer) to be dined by Blogger's lawyer, while serving as a keynote speaker for the lawyer's organization?

Jack said...

Again, if you accept that there was some improper behavior that should lead Kagan to recuse herself, then you should accept that Scalia and Thomas have acted inappropriately as well.

Here's a great non-partisan blog dedicated to all the legalities of the ACA.

And let's not forget that Thomas' wife has a financial interest in all this as well.

From an editorial over at Slate:

"To my friends who hate Kagan, I can offer you little comfort. You will no doubt look and look until you find something, and if you don’t, you’ll start mumbling stuff about grassy knolls. But if you are going to fault Kagan for being hyper-aware of judicial appearances, at least be evenhanded and fault Scalia and Thomas for being hyper-reckless about them."

Sarkazein said...

No one said Kagan did anything of "improper behavior".
Her behavior only becomes "improper" if she does not recuse herself.

Sarkazein said...

"In perhaps the most damaging email chain from January 2010, two weeks before Obamacare was passed by the Senate, Brian Hauck, the senior counsel to Associate Attorney General Tom Perelli wrote to Kagan’s deputy Neal Katyal, saying that Perelli wanted “to put together a group to get thinking about how to defend against the inevitable challenges to the health care proposals that are pending.”

Katyal immediately replied, “Absolutely right on. Let’s crush them. I’ll speak to Elena and designate someone,” and forwarded Hauck’s email to Kagan with a note saying, “I am happy to do this if you are ok with it.”

Within minutes Kagan responded, “You should do it.” And Katyal, who went on to become acting solicitor general after Kagan was elevated to the Supreme Court, emailed Hauck saying, “Brian, Elena would definitely like OSG (Office of the Solicitor General) to be involved in this set of issues.”

Read more on Sen. Sessions: 'Deeply Disturbed' Over Kagan's Role in Obamacare
Important: Do You Support Pres. Obama's Re-Election? Vote Here Now!"- News Max

DavidG said...

I wonder if the readers are aware that the NC legislature is sitting on a huge pile of federal money that is supposed to be used to begin to set up the state level health insurance exchanges but the NC GOP in the legislature is refusing to even schedule the necessary discussions with the NC Dept. of Health and Human Services to allow them to begin to try to implement the planning stage of the law

Anonymous said...

Maybe this money can be saved and not wasted.

NewGuy said...

This pretty well says it!

guy faulkes said...

New Guy, sometimes a cartoon is worth 2,000 words.