Bench Memos

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On Tom Goldstein’s Update on Elena Kagan’s Recusals


On SCOTUSblog, Tom Goldstein offers a detailed explanation of how he (grossly) underestimated—probably by 46%, he (very implicitly) acknowledges—the recusal obligations that Justice Kagan will face in her first year on the Supreme Court. He also seems to try to give the impression that I was more wrong than he was on the matter. Just a few observations:

1.  In mid-April, before Kagan had yet been nominated, Goldstein, evidently playing his accustomed role of Supreme Court courtier, minimized the recusal obligations that a Justice Kagan would face, as he declared with seeming mathematical exactitude:

In fact, it isn’t necessary to hypothesize about how often Kagan would be recused. We can identify the cases specifically.…

In sum, I would expect a total of 13 recusals – 3 pending merits cases, 1 incoming merits amicus brief, 1 CVSG, 3 pending cert petitions, 2 pending briefs in opposition, and 3 appeal recommendations – if Elena Kagan were nominated on May 1. If the nomination occurred on May 15, it would be closer to 15. [Emphasis added.]

Goldstein repeated the precise estimate of 15 recusals in a May 8 post that correctly anticipated Kagan’s nomination on May 10:

In sum, I would expect a total of 15 recusals – 6 pending merits cases, 2 merits amicus briefs, 2 pending cert petitions, 2 pending briefs in opposition, and 3 appeal recommendations – if Elena Kagan were nominated on May 10.

Twice in that May 8 post, Goldstein predicted 15 recusals (the sum that his specific numbers add up to), though once, in an apparent typo, he predicted 16.

In his new update, Goldstein refers to a post-nomination estimate that he made of “around 16 cases of recusal” and offers his new estimate that Kagan will recuse from 28 cases this term (about one-third of what he projects as the Court’s total docket)—nearly double his pre-nomination prediction of 15.

2.  In his new update, Goldstein quotes an April 12 post of mine in which I looked to Justice Thurgood Marshall’s recusals for “some historical precedent” on the question of the recusal obligations of an SG turned justice—Marshall evidently recused himself from 57% of the cases during his first term—and I offered one reason why it “may well be that Kagan, if appointed, would have to recuse herself from an even higher percentage of cases during her first term than Marshall did.” By the end of his update, Goldstein has transformed the speculative possibility that I raised into “the assertion that Kagan would recuse in as many or more cases than Justice Marshall.” 

I of course acknowledge that I speculated that it “may well be” that Kagan would have to recuse herself in a higher percentage of cases than Marshall’s 57%. I never asserted, or predicted, that that “would” be the case. (Even such an off-the-cuff prediction would have been slightly closer, in percentage terms, to Goldstein’s new estimate than Goldstein’s supposedly meticulous prediction was.) And I never purported to present an exhaustive analysis that conferred seeming exactitude on my speculation. 

One reason that I never undertook a comprehensive exploration of the question is that the matter wasn’t of particular interest to me, as Kagan’s recusal obligations never formed any part of my case against her nomination. I highlighted the recusal issue (in my April 12 post and in the “Sixth” point of my “Will the Left Oppose Elena Kagan?” post*) only in the context of reasons why the Left might not want her to be the nominee. To put the matter bluntly, I’d be happy if Kagan had to recuse herself in every case.

3.  As I’ve already acknowledged, Goldstein was right, for the wrong reasons, on his important prediction that Kagan would stop taking on new cases as SG as soon as she was nominated to the Court. (Goldstein first said that she would leave her position as SG after her nomination, then that she would “recuse herself” from new cases.)  

* My apologies for the sweeping italicization that has infected some old posts; I gather that’s some side effect of the new posting system.


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