Joe Levi:
a cross-discipline, multi-dimensional problem solver who thinks outside the box – but within reality™

Should a judge recuse themself if they helped write, defend, and lobby a law their court will be hearing?

When a judge has a conflict of interest with a particular case they “recuse” themselves — they basically step aside and let another judge handle the case. Do so not only insures that a judge won’t let their bias influence their decision, perhaps more importantly it removes the perception of bias that might undermine the credibility of the court itself.

Why is it then that one particular Supreme Court Justice refuses to recuse herself from a case that will try a law that she helped write, she helped defend, and she lobbied to pass?

Self-avowed liberal Democrat law professor Eric J. Segall just wrote a blistering op-ed against Kagan’s bias, that made waves in the Wall Street Journal and National Review.

“Recently I wrote an editorial in Slate arguing that Elena Kagan should recuse herself in the upcoming challenge to President Obama’s health-care plan. Because I am a ‘self-avowed’ liberal, the piece created a bit of a stir, as noted by the Wall Street Journal.

“Elena Kagan should, however, recuse herself based on the undisputed fact that her office, the Office of the Solicitor General, and her top deputy, Neil Katyal, were undeniably involved, from the beginning, in the Obama administration’s litigation strategy defending the Affordable Care Act (‘ACA’). Publicly available e-mails show that on March 21, 2010, Katyal informed Kagan of a meeting to discuss the litigation, and said to her: ‘This is the first I’ve heard of this. I think you should go, no? I will, regardless, but feel like this is litigation of singular importance.’

“This, and other evidence, demonstrates that the Office of the Solicitor General was involved in discussions about how to defend the ACA, and it is undisputed that Justice Kagan was the head of that Office. So here is a hypothetical that demonstrates that Kagan should recuse herself. This argument does not depend on 1) any charge that Kagan lied during her confirmation hearing, which I emphatically don’t believe she did, or 2) any finding that the law requires her recusal, though it might.”


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