Should Elena Kagan Recuse Herself From the Obamacare Case? Of Course Not.

The law, lawyers, and the court.
Nov. 16 2011 7:00 PM

Musing About Recusing

Why calls for Elena Kagan to recuse herself from the Obamacare case are ridiculous.

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The outcry over Thomas and Scalia and their attendance at events sponsored or supported by the Koch brothers or partisan political groups is simply not comparable to the claims that Kagan is in looooove with Obamacare. Kagan is being criticized for doing her job before she became a justice. Scalia and Thomas are being faulted for participating in extracurricular activities while they are sitting on the court.

One of the reasons the two sides are talking past one another—yet again—is that there is no agreement on what even looks like bias, much less what is bias. But how’s this for a stab at differentiating: The appearance of doing one’s job as a lawyer before being elevated to the bench is in no way comparable to the appearance of aligning yourself with a partisan legal or political cause once on the bench. One bespeaks, at worst, the existence of a work ethic. The other bespeaks a taste for picking unnecessary fights.

My friend Lincoln Caplan made this point when he tried to explain why attendance at the Federalist Society event matters, even when it doesn’t matter: “It does not matter whether the group is conservative, liberal or otherwise. Justices, just like federal judges, are public servants, and should preserve the appearance of impartiality to enhance the public’s confidence in the legal system.” The ethics rules don’t exist to protect federal judges and their rights to party like it’s 1984. They exist to protect the integrity of the judiciary and the public confidence in the idea of a fair hearing. Nobody doubts that the nine sitting justices each believe themselves to be too super-excellent to be biased. But nobody knows or cares whether they think they’re biased. And the court as a whole is in trouble when the justices are making news for their partisan activities and none of them seems to be upset about it.

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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.