The ObamaCare Recusal Nonsense

The left doesn't want Justice Thomas to hear the case. The right says Justice Kagan is too biased. The full court should decide the case.

By MICHAEL B. MUKASEY

No sooner had the Supreme Court agreed to hear the challenge to the constitutionality of the Obama administration's health-care overhaul than chatter began about whether either Justice Elena Kagan or Justice Clarence Thomas, or both, should be disqualified—"recused," in the argot of the law—from considering the case.
But upon even a cursory examination of the facts it is clear that neither justice should step aside. The court we have should decide the case.


Justice Kagan served as solicitor general in the Obama Justice Department before she was nominated to the bench. The solicitor general heads the small team of lawyers who represent the federal government before the Supreme Court, and coordinates and controls the government's litigation positions in the various federal courts of appeal and occasionally even in district courts.
Although critics have portrayed Justice Kagan during her tenure as a "cheerleader" for the health-care bill, and although she did send an email to a former faculty colleague that applauded the legislation, the solicitor general ordinarily is not called on to advise on issues of constitutionality of proposed legislation; that task usually falls to the Office of Legal Counsel. There has been no evidence that she acted personally in her official capacity as solicitor general in connection with any issue in the case.
As to Justice Thomas, the facts said to bear on recusal stem not from his own acts and statements, but solely from those of his wife, who has been described as a conservative activist affiliated with groups that have a position decidedly opposed to the health-care legislation and its individual mandate. But here, too, the case for recusal is flimsy at best.

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Associated Press

The U.S. Supreme Court

The law on disqualification of judges is based in a statute and the cases that interpret it. The statute sets out one general and several specific conditions that warrant recusal. But whether the issue is raised by a party or by the judge himself, it is always the judge who decides. A judge is just as obligated not to recuse himself when recusal is unnecessary as he is to step aside when it is. That's how it works in lower federal courts as well. True, in those courts there is always a higher court to review the determination. But surely a more detailed congeries of rules at the Supreme Court level will not assure greater clarity, nor would public confidence be improved by making justices review one another's recusal decisions—deciding, in effect, whether to vote one another off the island.
Of the specific standards, only two—one as to each justice—could conceivably be relevant. The one that potentially relates to Justice Kagan requires disqualification "[w]here [the Justice] has served in governmental employment and in such capacity participated as counsel [or] adviser concerning the proceeding or expressed an opinion concerning the merits of the particular case or controversy." "Proceeding" is defined to include all stages of the relevant litigation.
In order to run afoul of that provision, Justice Kagan herself would have had to participate in her official capacity as counsel or adviser in the case at any stage, or expressed an opinion in her official capacity about the merits. Asked during her confirmation proceedings whether she had done so, she said no. Absent evidence to the contrary, there is no reason not to credit that denial. Statements of opinion to friends or former colleagues do not count here.
The one provision that could apply to Justice Thomas requires recusal if the spouse of the Justice is known by him "to have an interest that could be substantially affected by the outcome of the proceeding." Under the applicable law, the "interest that could be substantially affected" does not include a rooting interest, which is the only interest hypothesized even by the justice's critics.
Which brings us to the general provision, directing that "Any justice . . . of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned"—words of such sprawling generality that they seem at first glance to open both justices to attack; after all, what is fatal is not necessarily actual partiality, but even the appearance of partiality.
First glance, however, does not decide the outcome. The standard for determining when impartiality might "reasonably" be questioned has been held to be an objective one. It is not one based on an imagined straw poll of the partially informed hypothetical man on the street, but based on how a person of reasonable judgment, aware of all the facts, as well as how courts function, would decide.
That person would—or should—be aware, for example, that race and religious discrimination cases are decided every day by judges of all races and creeds, that sex discrimination cases are decided by both male and female judges, disability cases by judges with and without disabilities. Challenges based on such factors, which engage biases far deeper than any purported rooting interest in a case, have been swatted down so often that a law clerk of even middling competence could prepare an opinion in less than half a day for a judge facing such a challenge.
The persistence of recusal issues appears to have little to do with the legal merits—there aren't any—but a great deal to do with the process of how we have selected and rejected candidates for judicial office in the past few decades, certainly since the superbly qualified Robert Bork was turned down for a seat on the Supreme Court. The selection of judges has become a high stakes exercise for agenda-driven politics, with nominees often selected with at least one eye focused on their expected tilt on the issues of the day.
Those nominees then are expected to bob and weave their way through hearings, proclaiming solemnly—sometimes even accurately—that their minds are as straight as the edge of the Judiciary Committee witness table, as open as their upturned palms. When contentious cases then come before them, the agenda-driven politics that helped seat the judges does not disappear, nor do the stakes diminish; they rise—along with incentives to disqualify judges.
It will take a long period of concentrated effort to reverse the process of off-loading political issues onto the courts, selecting judges based on their perceived proclivities in deciding political issues, and seeking political advantage from and reading political motive into every court decision with a political consequence.
But ancient Chinese wisdom teaches that a journey of a thousand miles begins with a single step. Perhaps the way to start this particular journey is to pull our collective socks up, stop the chatter about recusal, and let the court we have—for better or worse—decide the case.