Kagan controversy good for the public, court watchers say

Neil Munro White House Correspondent
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Conservatives can’t make Supreme Court Elena Kagan recuse herself from the “Obamacare” case, no matter how much she helped design the president’s health care law, but the recusal controversy will likely moderate judges’ future decisions, say court watchers.

Because of conservative pressure on the judiciary, “you’re seeing a real shift in the American public’s understanding of the issue … people understand the need for judges who are not activists,” said Carrie Severino, chief counsel and policy director of the Judicial Crisis Network.

The public pressure is felt by each judge, and the judges can push each other to not offend the public’s sense of justice, said Severino, a lawyer who served as a clerk for Justice Clarence Thomas.

Supreme Court justices have the legal authority to decide for themselves whether they should recuse themselves. There is no legal process to impose a recusal.

Partly because of this legal autonomy, Kagan should explain her decision to not recuse herself, said James Sample, a Hofstra University law professor who supports the health care law and has worked for Democratic politicians and causes.

If judges had to recuse themselves whenever they any connection to an issue, the “consequences would be that only the previously civically uninvolved, non-elites could rise to be Supreme Court justices,” said Sample, who has studied judges’ recusals, and does not believe Kagan should recuse herself from the case.

By explaining their decisions to not recuse themselves, the “transparency might take them down a notch, but also might serve their interests and the country’s interests in the long term,” he said, adding that “It would be a wonderful moment in civics.”

Thomas, who is being pressured to recuse himself by left-of-center groups, should also stay on the case and explain himself, Sample said.

The model is Justice Antonin Scalia, who issued a lengthy explanation of why he did not recuse himself from a 2004 case involving then-Vice President Dick Cheney, even though Scalia and Cheney had gone duck-hunting together, said Sample.

Severino said she wants to push the recusal issue partly to keep Kagan and other judges from pushing their progressive agenda.

Emails released by the administration show that Kagan — who served as the president’s solicitor general until she was confirmed to the court — helped the administration make its legal case for the law, she said. Kagan also delegated some part of the task to another political appointee in her office, rather than to non-political civil servants, she said,

That record will embarrass Kagan and her colleagues on the court, she said. “She’s got her [court] job for the rest of her life, and the only thing left is her legacy, and if she cares about that, she’ll be concerned about how her failure to recuse looks,” Severino said.

“It also implicates her relationship with the other judges … [because] if the other members of the court start becoming uncomfortable that this [controversy] is bringing the reputation of the court down, they can bring pressure” on Kagan to moderate her actions, Severino said.

The controversy also highlights the importance of judicial appointees, she said. The next president may get to appoint two or three judges to the court, so Kagan’s behavior shows the public “what kind of justices we could see if Obama is president for another four years,” she said.

“The American people deserve judges who approach their role impassionately,” she said.

Republicans won’t lose out from these judicial controversies, she added, because they and the public support judges who stick to the text of laws and restrain themselves.

Also, whenever progressive groups try to paint GOP-supported judges as biased, “the truth will bear out,” and the progressives will lose, she said.

“The justices absolutely should be subjected to public critiques,” said Sample. “We want justices to be independent and insulated from majoritarian pressure … [and] we want the justices to be public servants, not philosopher kings.”

But he criticized the efforts to force Thomas and Kagan to recuse themselves as excessive and politically opportunistic.

Yet he also said the recusal process is flawed, partly because it gives judges “the luxury that average civilians are never afforded — to be the judge in their own case.”

That autonomy “goes against every norm of American or English [law] going back to the Magna Carta,” he said. That deal was signed by an English King in 1215.

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