Mukasey on the ObamaCare “Recusal Nonsense”

Former federal judge and Attorney General Michael Mukasey argues against the recusal of any Supreme Court justices in the in the case challenging the constitutionality of the Patient Protection and Affordable Care Act.  Ideological partisans have argued that one or more justices on the other side of the ideological divide are sufficiently conflicted to require recusal.  The Left has targeted Thomas (and to a lesser extent, Scalia) for alleged spousal conflicts and (choice of dinner companions), while the Right has targeted Kagan due to her work as Solicitor General.  To each, Mukasey responds: “upon even a cursory examination of the facts it is clear that neither justice should step aside.”

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.

In my view, the complaints against Justices Thomas and Scalia are frivolous. By the standards traditionally applied by the Supreme Court, there is no question recusal is not required here. Justice Ginsburg did not recuse in tax cases, nor in cases in which the NOW Legal Defense Fund participated, and these presented closer cases than the allegations made here. (Ditto calls for Judge Stephen Reinhardt to recuse from the Prop. 8 litigation in California due to his wife’s work with the ACLU.) And if attending ideologically charged dinners is a problem, some of the liberal justices would have problems here too. Perhaps a more stringent standard should be applied, but the bar for recusal should be quite high in the Supreme Court, as a forced recusal is (for all practical purposes) a vote to affirm the judgment below. This is why I think the bar for recusal should remain high.  We all know the justices have ideological priors — indeed, that’s one reason they were chosen in the first place — and, as Kevin Drum noted, excessive focus on spousal career choices could have pernicious effects.

The complaint against Justice Kagan is more superficially plausible, as she worked as Solicitor General while the PPACA was in Congress and the Justice Department began developing its defense strategy.  Under normal circumstances, the former SG would need to recuse in a case of this sort.  Yet by all accounts, Kagan walled herself from participating in any meetings or strategy discussions about the PPACA, even before she was tapped for the Court. Such discussions, had they occurred, would be grounds for recusal, unquestionably. But Justice Kagan claims to have stayed out, and I see no reason to question her veracity on this point.  That she cheered the law’s passage to Lawrence Tribe does not require her recusal either. Even assuming she loves the law, her personal political views do not require her to recuse any more than Justice Scalia’s personal or religious views about abortion require his recusal in cases questioning the constitutionality of abortion laws.

An added note: While I believe Kagan has been forthcoming, I do not think the same can be said for the Justice Department. Documents concerning Kagan’s non-role were withheld from the Senate Judiciary Committee and only later released in response to a FOIA request. Moreover, as I understand it, some documents are still being withheld under the FOIA exemption covering privileged or deliberative documents.  This exemption would seem to apply only if Kagan had actually been involved with the case. This cannot help but raise questions, but is not, in itself, a cause for recusal. The Justice Department is notoriously stingy when it comes to the disclosure of documents of this sort, yet the failure to be more forthcoming only fuels the call for Kagan to step aside.  Again, however, I believe Kagan should be taken at her word.  She has been quite diligent about recusing in cases in which she was involved, and our system relies upon Supreme Court justices to police themselves in the first instance.

UPDATE: The Washington Post likewise believes Justice Thomas presents an “easier call” while Justice Kagan’s situation is “more delicate and difficult.”  And, although the WaPo muffs the relevant dates (Kagan was not walled off until later in March, not “early March 2010” as the editorial claims), it reaches the same conclusion: Neither is required to recuse.  As the Post concludes:

Justices are not blank slates. They come to the court with personal views on a range of policy and political issues. They have a duty to decide cases, absent an incurable conflict; this is especially true at the Supreme Court, where, unlike lower courts, no other judge may fill the void created by recusal. But they must set aside personal preferences when deciding matters of law. We trust that Justices Thomas and Kagan will do that.

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