Bench Memos

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Lithwick’s Illogic on Kagan and Recusal


[Note (11/18, around 9:30 a.m.): I’m grateful for the link to this post from NRO’s home page, but I will note that the current home-page blurb doesn’t accurately capture my position. In particular, I’m very open to the possibility that there may be serious counterarguments (I just haven’t run across any yet), and my own position that the arguments for recusal are powerful is therefore much more provisional than the headline “Kagan Must Recuse Herself” suggests.]

Again, I’d welcome serious counterarguments to the case that Justice Kagan must recuse herself from the Obamacare litigation under 28 U.S.C. § 455(b)(3), but I’m afraid that Dahlia Lithwick’s latest doesn’t quite qualify.

Lithwick first seems to imagine that it’s bizarre that anyone would think that Kagan would have to recuse herself because she “called meetings and sent e-mails and did other stuff that was her job—all in anticipation of lawsuits over the law.” But that’s exactly what section 455(b)(3) addresses. Remarkably, she doesn’t cite or quote section 455(b)(3) or explain why Kagan’s established activities don’t qualify as “participat[ing] as counsel [or] adviser.”

A few paragraphs later, Lithwick acknowledges that “Kagan would have to step aside if she had, while in government service, worked on strategies and tactics on health care.” But she doesn’t bother to note that Kagan made the strategic decision to assign her deputy to the matter and that she was copied on substantive legal advice, much less to explain why these actions wouldn’t trigger the obligation to step aside.

Then, Lithwick resorts to blatantly mischaracterizing the arguments for Kagan’s recusal: “the suggestion here seems to be that Kagan is compromised not for the work she did, but for the office she held.” That’s simply not so (and the reader is left with no idea where Lithwick drew the “suggestion” from).

And then she returns to complaining that Kagan “is being criticized for doing her job before she became a justice.”

I realize that linear logic is unpopular in some quarters, but Lithwick’s alternative mode is head-spinning.

Lithwick seems also not to realize that Supreme Court justices are obligated to comply with the provisions of 28 U.S.C. § 455. Volunteering the aside “Not that the Supreme Court justices are bound by this,” she oddly refers only to a parallel provision of the Code of Conduct for United States Judges.

(Jonathan Adler’s recent post preemptively disposes of the second half of Lithwick’s piece, in which she faults Justice Scalia and Justice Thomas for “being hyper-reckless” for attending a recent Federalist Society dinner.)

Update: I see that Carrie posted on the Lithwick column just before I did.


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