CQ WEEKLY – IN FOCUS
July 16, 2011 – 12:03 p.m.
Recusal of Fortune: Gaming the Bench
By Seth Stern, CQ Staff
Justices Elena Kagan and
Democratic lawmakers point to work by Thomas’ wife, Virginia, as a lobbyist and founder of a tea party-affiliated organization working to defeat the law. Republican lawmakers say newly released emails from Kagan’s tenure as solicitor general suggest she may have been more involved in formulating the defense of the law than she revealed at the time of her confirmation last year.
Given the enormous stakes in the highest-profile challenge to a federal law in decades, it is no surprise that advocates looking for every advantage have seized upon recusal as a potential weapon in a case the Supreme Court could take up as early as this fall.
|
||
|
Recusal motions are a litigation tool frequently used by lawyers seeking to knock out judges they view as unsympathetic to their clients. They have also become a weapon in the broader political war over the health care law now playing out in Congress, regulatory agencies and the courts. So far, all but one of the lower court decisions have mirrored the political affiliations of the judges involved, reinforcing the sense that the judicial process may be as partisan as are other branches of government and encouraging advocates to try to remove those who may not share their views.
A recusal is potentially even more potent in the Supreme Court, where — unlike on lower tribunals — justices can’t be replaced, and one absence could swing the outcome. Nor is there any mechanism to review or appeal a justice’s decision on withdrawal, meaning the justice alone is the final arbiter about staying in a case.
Legal experts say it’s not at all clear whether Kagan or Thomas should remove themselves from the case based on what’s known thus far, but those on both sides of the ideological divide express concern that public faith in judges is undermined when partisans seek recusal to achieve political ends.
“What we have here are huge stakes in one of the biggest ideological battles in the country, and recusal is being used as just one arrow in the quiver, even though it doesn’t particularly fit,” says James Sample, a law professor at Hofstra University on Long Island, N.Y.
The health care case certainly isn’t the first time outside parties have tried to pressure a Supreme Court justice or lower federal court judge into removing him or herself from a high-profile case.
In 2004,
More recently, defenders of a California state ballot measure banning gay marriage argued that the federal district court judge who struck it down should have removed himself because he had not disclosed his own long-term same-sex relationship. Since that judge, Vaughn R. Walker, subsequently retired, the challenge to the ruling was heard by another judge, who rejected it last month.
Defenders of the ballot measure also filed a recusal motion against Stephen Reinhardt, one of the federal appellate judges hearing the appeal, because his wife headed a local branch of the American Civil Liberties Union, which had advocated against the ban.
What makes the recusal calls on Capitol Hill in the health care case particularly notable is that each side in the debate is targeting a justice it thinks will rule against its party months before any lower federal appeals court had even heard the case.
Recusal of Fortune: Gaming the Bench
The issue was first raised during Kagan’s confirmation last year. Republicans questioned whether her work as solicitor general during enactment of the health care law should disqualify her from ruling on its constitutionality as a justice.
In answers to their written questions, Kagan acknowledged attending “at least one meeting where the existence of the litigation was briefly mentioned,” but she said she hadn’t participated in any substantive discussions.
That answer didn’t satisfy
One week later, 76 House Democrats signed a letter to Thomas asking that he recuse himself from any health law challenges due to his wife’s work on behalf of Liberty Central, a tea party group seeking to overturn the law, and also for the Heritage Foundation, which opposed the law.
“Given these facts, there is a strong conflict between the Thomas household’s financial gain through your spouse’s activities and your role as an Associate Justice of the United States Supreme Court,” read the letter, organized by New York Rep.
Discord on the Rise
The recusal calls have intensified more recently as the first of three federal appeals courts that have heard challenges to the law issued rulings. Jeffrey S. Sutton, a former Scalia clerk appointed by President George W. Bush, became the first Republican appointee to decide in favor of the law when the U.S. Court of Appeals for the 6th Circuit upheld it last month.
Five days earlier, 49 House Republicans sent a letter to the House Judiciary Committee citing newly released emails from Kagan’s tenure as solicitor general as raising “serious questions about Justice Kagan’s ability to exercise objectivity” in this case. “It’s still an open question, but the email traffic certainly suggested strongly that Kagan was involved in crafting a defense for ‘Obamacare’ against a constitutional challenge,” says
But the 24 pages of emails obtained by Judicial Watch via a Freedom of Information Act request also suggest Kagan may have walled herself off from the issue, perhaps in anticipation of a future Supreme Court nomination.
House Judiciary Chairman
Smith said last week “it would be premature” to say what further steps the committee might take to investigate, or whether Kagan should remove herself, since the case hasn’t reached the Supreme Court.
Supreme Court justices theoretically are bound by a statute that dictates when all federal judges are supposed to disqualify themselves. (Congress established guidelines in 1974, after Justice William H. Rehnquist participated in a case involving a matter which he had previously testified about before Congress while serving in the Nixon Justice Department.)
For the current cases, the relevant provisions require disqualification in instances where a judge previously has “expressed an opinion concerning the merits of the particular case in controversy” while serving as a government lawyer, or has a spouse who “is known to have an interest that could be substantially affected by the outcome of the proceeding.”
Recusal of Fortune: Gaming the Bench
But legal experts say the statute itself is vague and that there is little case law, particularly from the Supreme Court, that provides guidance. And unlike at the lower court level, where cases are subject to appeal, there is no recourse should a justice opt to participate.
“In reality, they decide whether or not those statutes apply to them and whether they should take themselves off the case, and there’s really not much of a mechanism to do anything about it,” says Richard E. Flamm, a California attorney and author of a treatise on judicial disqualification.
The result, says Indiana University law professor Charles Geyh, is that recusal motions filed against Supreme Court justices often become “a political game.” That pressure can be useful in instances when a judge ought to disqualify herself or himself, but when applied against judges who shouldn’t, “it casts doubt on the legitimacy of the court.”
What particularly troubles Richard W. Painter, a University of Minnesota law professor and former counsel to Bush, is the selective outrage by partisans. The same critics who raised concerns about Judge Reinhardt in the gay-marriage case are mostly silent regarding the potential conflict of interest posed by Justice Thomas’ wife, and vice versa. “It’s always so predictable where people come out, and judicial ethics shouldn’t be that way,” Painter says. He blames the justices for their willingness to insert themselves into highly politicized cases that can strike down laws ranging from gun control to gay marriage and election law. “Judging has become highly political in an environment where judges aren’t willing to defer to Congress,” Painter says.
Legal experts say the Supreme Court could help defuse the issue by having a justice’s colleagues review a decision to stay in a case, a procedure used on several states’ high courts.
Rep.
While he singled out only conservative justices for criticism in a draft letter to the House Judiciary Committee requesting a hearing on the bill, he concedes that “this certainly seems to have become a pretty partisan issue in Congress where Democrats are picking out conservative justices and Republicans are picking out liberal judges.”
Regardless of ideology, he says, “I think anybody appearing before the Supreme Court should have an opportunity to make a claim of conflict of interest.”
The Republican-controlled House Judiciary Committee has no plans to consider the bill. And given the insular culture of the Supreme Court, Sample, the Hofstra law professor, predicts the chances of ever convincing the justices of adopting such a procedure are “somewhere between slim and none.”
FOR FURTHER READING: Health care law litigation, CQ Weekly, p. 292; justices’ public profiles, p. 241; Kagan confirmation, 2010 Almanac, p. 10-3; 1974 recusal law (PL 93-512), 1974 Almanac, p. 301.