Confusion about Elena Kagan and Recusal

By Tom Goldstein
on May 19, 2010 at 2:17 pm

CQ has an article today (no link available, unfortunately) that in discussing Elena Kagan’s recusal obligations notes that she “listed at least 30 cases where she had signed a petition as the counsel of record asking the Supreme Court to consider a case that the justices have already granted or that is still pending.”  The article says that Kagan has taken a “very narrow view” of her recusal obligations by stating she “would recuse herself ‘in all matters for which I was counsel of record’” but that “according to judicial ethicists and lawyers who argue before the court, that is a very limited reading of the federal statute governing judicial recusals” and that “the universe of potential cases they would expect her to recuse herself from is likely much larger.”

The article cites Ron Klain as previously having estimated that Kagan would recuse from roughly a dozen cases in her first Term on the Court; notes that I had come to “a similar conclusion” in a post for the blog; and states that “[b]ut [Carter] Phillips estimated that Kagan might have to recuse herself from as many as 20 to 25 percent of the 70 or so cases the court might hear during her first term on the bench.”

The article seems to misapprehend the cases involved and to misstate slightly the standard Kagan said she would employ.

In terms of the number of cases, I asked the article’s author where the “at least 30 cases” figure comes from, and he explained that it was based on the attachments to Kagan’s questionnaire that reproduce petitions and invitation briefs.  By my count the questionnaire lists 23 still pending cases — not “at least 30” — in which the government filed a petition or invitation brief.

Even more important, only 9 (at the very most) of that 23 actually could trigger recusal for Kagan once she starts on the bench next Term if confirmed, because only those 9 would be argued and decided next term.  The other 14 involve cases that are being argued or decided this Term, or that are being held for cases that were argued this Term.  Put another way, the CQ story relies on the prospect that Elena Kagan would have to recuse from cases that were argued in, for example, March and that would be decided in June, several months before she joins the Court.  That makes no sense, and I think just reflects a misunderstanding by the author of the nature of the documents attached to Kagan’s questionnaire — i.e., the author did not realize that many cases while pending couldn’t actually turn into merits cases next Term.

I believe that I accurately described the number of cases in which Kagan is likely to have to recuse herself in this post, which also discusses important categories of cases that the CQ article does not address: already granted cases and cases in which the government filed an opposition rather than a petition.  The total number should be around 16 recusals for next Term.

That is roughly 20% of the Court’s merits docket, which tends to be around 80 merits cases, not “70 or so” as the CQ article says.  So when the article supposedly contrasts my view that there will be 16 recusals with Carter Phillips’ that there would be “as many as 20 or 25 percent” of the merits docket, we’re actually saying the same thing.  In fact, I think the odds are very high that Carter was relying on my post to come up with his number; Carter has many better things to do than study all the cases in which Kagan would end up recusing herself.

In terms of the standard, it is incomplete to say, as the article does at the beginning, that Kagan’s standard is that she will recuse if she was counsel of record in the case.  The article later acknowledges, only after quoting Ron Rotunda as saying that the counsel of record standard is “much too narrow,” that Kagan said she would also look to the recusal statutes and consult with her colleagues.  I don’t think there is any evidence that Kagan necessarily disagrees with the idea that she would recuse if she personally participated in a case in any material way, without regard to whether she was counsel of record.  The counsel of record category is clear and easily carved out, and I expect she is considering precisely where to draw the line in other cases.  I think it’s important to point out the unfairness of the criticism cited in the CQ article because it’s a very serious deal to suggest someone (and particularly a Supreme Court Justice) is acting — or planning to act — unethically.