- 3,352
Thanks Winter and Somarco for the expanded coverage: Good stuff and Fox News has a place for you on O'Reilly and Hannity when Obama puts us out of business. Are you guys as good looking as the bombs on Fox?
Why Isn't the Obamacare EMPLOYER Mandate Unconstitutional?
- Thread starter somarco
- Start date
- 2,908
I am dying my hair blond right as we speak.
Are u getting the gap between your teeth fixed?
- 2,908
- 901
Beg to differ.
Actually, the Rules require recusal. 28 USC sec. 455 requires that a judge:
"shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." The same section also provides that a judge is disqualified "where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding"; when the judge has previously served as a lawyer or witness concerning the same case or has expressed an opinion concerning its outcome; or when the judge or a member of his or her immediate family has a financial interest in the outcome of the proceeding."
Kagan still is a member of the Bar, and as such, is subject to disciplinary action. It would be unusual, but if she refused to recuse (sorry Johnny Cochran), you would see all kinds of legal maneuvering attempting to force her off the case. And if she refused, she could be sanctioned, or heaven forbid, even disbarred.
As a practical matter, Kagan already has recused herself from at least 25 cases during her first term. Don't really see her trying to fight recusal on one more case she happened to work on as Solicitor General. Wouldn't be prudent.
Of course, what we don't know is whether she had anything to do with any of the cases floating in the system. Could be, she did not, in which case, recusal would not be required, but still may be prudent. Depends on what she knew and when she knew it.
(The Solicitor General's office handles appeals at the USSCt, but as a practical matter, it would not be uncommon for the SG to issue pre-litigation opinions, etc. especially in cases where it is likely a Supreme Court appeal will ensue.)
- 2,908
Beg to differ.
Actually, the Rules require recusal. 28 USC sec. 455 requires that a judge:
"shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." The same section also provides that a judge is disqualified "where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding"; when the judge has previously served as a lawyer or witness concerning the same case or has expressed an opinion concerning its outcome; or when the judge or a member of his or her immediate family has a financial interest in the outcome of the proceeding."
Kagan still is a member of the Bar, and as such, is subject to disciplinary action. It would be unusual, but if she refused to recuse (sorry Johnny Cochran), you would see all kinds of legal maneuvering attempting to force her off the case. And if she refused, she could be sanctioned, or heaven forbid, even disbarred.
As a practical matter, Kagan already has recused herself from at least 25 cases during her first term. Don't really see her trying to fight recusal on one more case she happened to work on as Solicitor General. Wouldn't be prudent.
Of course, what we don't know is whether she had anything to do with any of the cases floating in the system. Could be, she did not, in which case, recusal would not be required, but still may be prudent. Depends on what she knew and when she knew it.
(The Solicitor General's office handles appeals at the USSCt, but as a practical matter, it would not be uncommon for the SG to issue pre-litigation opinions, etc. especially in cases where it is likely a Supreme Court appeal will ensue.)
The question of whether Kagan will recuse is separate from my point that you cannot force a Supreme Court justice to recuse and there is no appellate court or legal sanction to compel it, unlike in the lower courts where the parties can work it around a bit or it has implications for the case. Kagan might very well recuse, again, that was not the point being made.
In cases, where a justice's actions rise to the level of impeachment then a case could be made that sanctions could ultimately be applied that way but as a practical matter cases come to the court every session where some of the parties would like some of the justices to recuse. Again, as a practical matter, they are simply dependent on what the justice decides to do. Otherwise, what are they going to do about it. Not in theory, in practice. There is nothing they can do (unlike in lower courts). Yes, public scorn and loose talk about disbarment might have an effect on a justice but in th end, you are dependent on what they decide all by their lonesome and there is nothing you can do about it unless one thinks it rises to the level of impeachment. Even disbarment would not be much for them to worry about as their is no requirement under the Constitution that a Supreme Court justice be a lawyer or even be an American citizen for that matter. (also, even if you hypothetically impeached the justice, that would not reverse any cases they participated in),
Kagan may well decide to recuse. Point being, it is her decision. We can churn some academic or hypothetical stuff but if you think there is a practical way of forcing a supreme court justice to recuse or forcing a third-party review or compulsion of it, then that certainly would be something that those practicing before the court would like to know because that has always been their cross to bear.
Kagan will recuse is she wishes or not if she does not so wish and she is appointed for life unless removed through an impeachable offense.
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- 3,352
Why would Kagan, an ultra lib, recuse herself on this one? When she has a chance to bury the free market healthcare system with her pro Obamacare vote, come on!
- 2,908
I think that if this looked like it would be a 8-1 or 7-2 case, Kagan might recuse in order to let history show what a high-standard type she is. In other words, the case would still go in her favor without her vote so she gets to look judgely and see a ruling she supports too.
Not so sure on this one. The lay of the land makes it look like a 5-4 case either way. Take her vote out and it gets dicey.
- 3,352
Its amazing to me that such a large portion of our economy and personal care is being effected by such a terrible, disputed piece of legislation that was rammed through Congress. This entire fiasco is such a complete clusterF that I have recused myself emotionally.
- 2,908
I think Obama is saying about the same thing these days. His idea of leadership was to watch Congress flop around like a fish on the deck trying to come up with a bill with each flop. Then he called it "his plan." In other words "my plan is whatever frigging thing you can ram through."
Works for a while.
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