Supreme Court Justice Elena Kagan – Missing in Action?

Monday, 04 Oct 2010 02:32 PM

By David A. Patten

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U.S. Supreme Court Justice Elena Kagan has decided to step down from participating in nearly half of the 51 cases the court has agreed to review this term because of potential conflicts of interest.

The news that Kagan will bow out of an unexpectedly large number of cases sent attorneys and legal scholars scrambling as the first day of the court's new term began Monday. Observers are trying to determine how major case law could be affected by not having a ninth justice on the bench for as many of the 25 cases that the court has agreed to hear so far this year.

The court is expected to agree to hear another 25 to 35 cases this term, and it is possible that Kagan will recuse herself from some of those cases as well.

Jay Sekulow, the chief counsel of the American Center for Law and Justice who has argued several cases before the Supreme Court, tells Newsmax, "The ramifications of this recusal could be significant for a generation."

He added: "I think this is fraught with disaster, as far as getting definitive opinions out of the Supreme Court of the United States. I think it's going to make it very difficult."

During her confirmation, Kagan presented senators with a list of 11 cases that she planned to recuse herself from because of her work as U.S. solicitor general. Since that time, she had decided to also recuse herself from more than a dozen more cases.

"She was not accurate, nor was the Senate," Sekulow tells Newsmax. "So you've got half the docket that she's recused from."

Sekulow says it is difficult to know whether conservatives or liberals are more likely to benefit from the cases Kagan opts to sit out "because it's so case-to-case specific."

He adds, "But it's not good for the functioning of the court, where a third of its cases could be deadlocked."

According to the Washington Post, ACLU officials have said that some attorneys are holding off on bringing new cases before the Supreme Court for review, until they can determine whether Kagan will be able to help determine the outcomes.

Among the cases Kagan has elected not to rule on in this term of the court is Chamber of Commerce v. Whiting, involving a controversial 2007 Arizona law intended to combat illegal immigration. The law allows the state to void a company's business license if it hires undocumented workers.

Analysts will watch that case closely for clues on how the how the court might handle the controversial Arizona senate bill 1070, which empowers law officers to inquire about citizenship when they have a lawful reason to do so. The administration is trying to block that law in lower courts. The case is expected to eventually come before the Supreme Court.

The 9th Circuit Court of Appeals upheld the law, but the solicitor general's office told the court it impinged on the federal government's exclusive prerogative on enforcing immigration laws.

Under federal law, judges who have worked in the government must excuse themselves from participating in any case where they were involved "as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy."

If Kagan recuses herself and the eight remaining justices are deadlocked 4-4 on an issue, the ruling by the last appellate court to hear the case before it went to the U.S. Supreme Court automatically stands.

Kagan also has yet to announce whether she will recuse herself from the major legal challenges under way against the president's healthcare reform legislation.

During Kagan's confirmation hearings, she said that she never advised the administration on its healthcare reforms. But the real question is whether she advised the administration on potential litigation stemming from Obamacare.

The Florida lawsuit to block the application of the individual mandate to the states was filed March 23, about six weeks before President Barack Obama nominated Kagan to the Supreme Court.

The Wall Street Journal has called on Kagan to recuse herself from the case, stating, "As someone who hopes to influence the court and the law for decades, Ms. Kagan should not undermine public confidence in her fair-mindedness by sitting in judgment on such a controversial case that began when she was a senior government legal official."

Chicago attorney and Fox News contributor Tamara N. Holder says for one justice to generate so many recusals is extraordinary. "It's good that she's recusing herself if there's a real conflict," Holder tells Newsmax. "But this many seems like a bit much. How can anyone be that conflicted? Is she overly cautious to the point of insecurity or is this the right move so as to avoid scrutiny with the final decision?"

Because the solicitor general plays a key role in advising the Supreme Court, especially on challenges to federal statutes on policies, it's no surprise there are some conflicts.

Chief Justice John G. Roberts has recused himself from cases involving the pharmaceutical and healthcare company Wyeth, for example, because he owns stock in its parent company, Pfizer. Roberts recently announced he had sold that stock, however.

The real issue, Sekulow says, is that the recusal problem turns out to be much great than initially expected.

"You've got a very, very difficult situation that is, I think, much more significant that the members of the Senate realized at the time of her confirmation," he says.

Kagan's conflicts because of her time as solicitor general should diminish gradually, experts say, so that recusals will occur less frequently. Cases being reviewed so far this term will explore free speech and religion, sentencing guidelines, privacy rights, and job discrimination.

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