SCOTUSblog’s Tom Goldstein has offered his analysis of the recusal obligations that Elena Kagan, if appointed to the Supreme Court, would face as a result of her service as Solicitor General. (I’ve previously addressed this matter here (in point 6) and here.) His analysis, I believe, is based on a number of assumptions that are highly dubious or clearly wrong and that operate to lowball his estimate of Kagan’s recusal obligations:
1. Goldstein entirely ignores the role that Kagan has played, or may have played, in helping to formulate Obama administration policy on important legal issues. It’s my understanding, for example, that Kagan has participated in the formulation of Obama administration policy on a broad range of national-security issues. If so, she would presumably be required to recuse herself from any case in which the legality of such issues (those in which Kagan participated in formulating, that is) was contested. The same would be true for other issues (health care?) on which Kagan offered advice. Precisely because such matters would be of particular importance to the White House and because the Court may be sharply divided on them, one would expect that the White House would give them careful attention.
2. Addressing “cases in which Kagan would be recused because of her personal role in authorizing lower court litigation,” Goldstein opines that “it is not a large number of [such] cases that end up at the Supreme Court.” He forms this conclusion largely by “extrapolat[ing] from the experience of Justice [Thurgood] Marshall” forty years ago and estimates a grand total of three recusals by Kagan on this ground.
An alternative, and seemingly more sensible, starting point would be Goldstein’s statistic that the United States has in recent terms been a party in “a little below 40 percent” of cases that the Supreme Court has decided. The question would then be in what percentage of such cases has the Solicitor General taken part in proceedings below. That would include all such cases in which the United States lost in the district court. I’d guess that this calculus would yield a number far higher than Goldstein’s grand total of three. (Indeed, Goldstein’s bottom-line number is plausible only if the United States loses in the district court only a tiny percentage of the cases involving the United States that end up in the Supreme Court. Perhaps that was much more the case in Marshall’s day.) Plus, you’d then need to add to this number the cases in which the United States was not a party below but in which the Solicitor General considered amicus participation.
3. Goldstein assumes that Kagan would stop playing her role as SG in Supreme Court cases on the date of her hypothetical nomination—and, indeed, that “she would have … left the Office” (!) no later than a month from her nomination. It’s of course reasonable to assume that Kagan, if nominated, would have to spend a substantial amount of time on her nomination. But I see no reason to assume that she’d stop performing her key functions as SG, much less that she’d quit her job. If she remains in office, the briefs of the United States will continue to bear her name. (Goldstein reasonably assumes that Kagan would recuse herself from cases in which government briefs bear her name.) So the relevant end date for assessing Kagan’s recusals is the hypothetical date of her post-confirmation appointment to the Court, not the hypothetical date of her nomination. On Goldstein’s own assumptions, that revision would dramatically increase the number of cases in which Kagan would have to recuse.
So it would appear that Goldstein sharply understates the recusal obligations that Kagan would face, both in an initial term on the Court and in a second and third term. Goldstein considers Kagan’s recusal obligations “a novel potential ground for not appointing” her, but it’s difficult to see why the White House wouldn’t factor her recusal obligations into the overall calculus, along with everything else. Plus, he’s simply wrong that there’s anything “novel” about this: I’m reliably informed that the concerns that I and others raised about Alberto Gonzales’s recusal obligations in 2005 were carefully assessed by the White House.