She Who Will Not Be Recused
We’re referring, of course, to that hideous blob of barely sentient goo that goes under the alias “Elena Kagan”.
Now that OgabeCare is coming up for review by the Supreme Court you would think that maybe the words “a Supreme Court justice must recuse from “any proceeding in which his impartiality might reasonably be questioned” or that a justice must recuse anytime he has “expressed an opinion concerning the merits of the particular case in controversy” while he “served in governmental employment” might apply to that horrid hag who worked for Ogabe as his solicitor general, defending OgabeCare against legal challenges, not to mention this lovely email message she sent to Laurence Tribe:
‘I Hear They Have the Votes, Larry!! Simply Amazing.’
You would think. Because if that’s not “expressing an opinion”, then we’d like to know just what qualifies as such.
But His Majesty fears that you would be horribly wrong. We have already learned numerous times over the past three years that the law does not apply to the Ogabe Junta, so we’re not exactly holding our breath here.
It would be nice if it did happen, if for once the SCOAMF and his minions were to obey the law of the land, because if she does not recuse herself, then we needn’t treat the descent of the United States into tyranny as a hypothetical anymore. The train will already have pulled into the station at the end of the line.
Thatisall.
Categories: "Law" of the Land, Resident Ogabe, Tyrants and Thugs | 
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Do you wish to be governed or ruled?
For too long, the Judicial branch of government, has not had the best interest of America and her people in their law reviews. Only congress can reign them in. The executive branch is top heavy with appointed Czars and sycophants. Our Reps must be of such a caliber as needed to beat them down to the modest perch our forefathers had intended.
The royals were defeated for much of the same reasons these cocky and pretentious, elitist, DC power grabbing, back room dealing, stealing, mother hating, worm tongue, back stabbing, flip flopping, self serving…ah…er…Aaaaaaahh–
Crap!
F’n, aint no end to this descriptive.
F.E.T.E.
Release The KAGAN!!!
Sorry…somebody had to…
So if she chooses to stay on the case, can’t Chief Justice Roberts make her step down?
She was a big defender of this law as Solicitor General, and that alone is a conflict of interest.
LC Aggie Sith, a goddess, only different, G.G.O.R. recently posted..Here’s a Hooker .. and some Booze
You are so funny, Misha. Aside from this “outrage” being ginned up by FAUX News, (they cited an “Article 28, Section 144″ of the Constitution as their legal reasoning for her being “required” to recuse herself), just using your own “logic” on this, there are at least two other Justices that would need to recuse themselves — for FAR more cause than the imagined “opinion” of Kagen.
On the very day the Supremes decided to take up the Health Care law, Scalia and Thomas were having dinner with the lawyer who is likely to be the guy arguing against the law. The dinner was put on by Bancroft PLLC and Jones Day, another firm representing one of the trade associations who are challenging the law.
Think there might be a scosh of a conflict of interest there? Far more tangible than a statement of someone who thought it was “amazing” that after so many years of trying, a health care law had been passed.
Then there is the conflict of Justice Thomas, whose wife’s activities with the Heritage Foundation, Liberty Central, Liberty Consulting, and Dick Armey’s Tea Party astroturf organization has been central in fighting against the health care law.
THOSE are actual conflicts. Unfortunately, there are no constitutional requirements that prevent Associate or Chief Justices to recuse themselves in the case of conflicts. The closest law is 28 U.S.C. § 455 : US Code – Section 455 and clearly Scalia and Thomas would be required to recuse themselves under that statute. But they won’t. None of the Conservative justices have recused themselves for their previous involvements in conflicts, why should they start now?
DJ Allyn, Private Citizen recently posted..Zombie ~ The Cranberries
I should have added that the mechanism for enforcing such conflicts on judges is at the Supreme Court level. Who polices the Supremes? Since 28 U.S.C. § 455 is merely a statute, it is open for interpretation BY those Supremes.
Don’t get me wrong here, justices SHOULD be required to recuse themselves. ALL of them. But it is not going to happen. It is a power thing, and like it or not, these nine Robes tend to feel that they ARE the law.
Personally? Term limits of ten years, staggered over each year. Add one more Associate, and make the Chief the one serving his or her last year. Once their term is done, they can become a member of retired justices, whose membership would have one vote between them used only in the case of a tie.
DJ Allyn, Private Citizen recently posted..Zombie ~ The Cranberries
DJ Allyn, Private Citizen @ #:
Does lying under oath during your own confirmation hearings count as something that might disqualify a Supreme Court Justice from participating?
I mean, obviously lying under oath is nowhere near as incriminating as having dinner in violation of the Constitutional Precedent of Six Degrees of Kevin Bacon, but still?
Emperor Misha I recently posted..Peaceful Occutard Threatens to Burn New York City to the Ground
Dinner with a lawyer is a conflict of interest. A wife’s outside activities are conflicts of interest. Yet crafting the defense of the very piece of legislation that the individual will rule upon is not a conflict of interest.
really? …Really? …really?
Emperor Misha I says:
Seriously? Just because you can get 49 partisan members of the House to claim that there might have been some lying under oath during Kagen’s confirmation hearing, you automatically think that she did? How about the lying that John Roberts did during HIS confirmation hearing? Or Clarence Thomas’ confirmation hearing? Or any other confirmation hearing where you have an opposition element involved?
But that isn’t the point here. You want to single out one person and give the others a pass. For you, it is alright for two sitting Associate Justices to attend a dinner put on by the very people who are going to argue in front of them in a few months is perfectly alright.
Thomas has also decided on several cases where he’s had direct or indirect contact on. So has Scalia.
The problem with all of it is that there isn’t a mechanism that requires the Supremes to step aside when there are obvious conflicts. Should Kagen step back? Sure. But so should Scalia, Thomas. But you and I both know that is never going to happen.
I meant it above when I said that the Robes don’t feel they are above the law, just that they ARE the law. That is even worse.
DJ Allyn, Private Citizen recently posted..Zombie ~ The Cranberries
Umm – it’s not who signed, it’s the evidence in the article. Good try at obfuscating the issue, but if you read the documents that were released (and there’s more, but they aren’t coughing those up even though they’re mandated to by law) Kagan was hip-deep in the law defense planning.
To my mind, there is a large difference between working on the law (as those documents prove Kagan was doing) and having dinner with the probable (not certain, as above) lawyer where they may have (not certain, again, but maybe) talked about the case. Or even Thomas’s wife’s actions, for everyone knows that a wife would never ever do anything without talking it over with her husband and getting his approval, downtrodden folks that they are. Cough.
So… we have definite proof of conflict of interest on one side, and possible conflict of interest on the other. Only a liberal would try to make those two equal.
I do agree about the Supremes placing themselves as the ultimate rulers of the US, that is not where they belong. We could use another president like Andrew Jackson (democrat, a-hole and a man’s man) to put them in their place again.
DJ…
Eating dinner with someone who possibly might, maybe, be involved in the case is nothing. Now, if said lawyer decided to suddenly gift a pile of money to said Justice… then you’d have a case here. Just because I eat dinner with my friend, doesn’t mean I necessarily agree with him on matters of law. I have a liberal friend who I drink beers and down burgers with all the time, and we still argue like nobody’s business if someone is dumb enough to bring up politics around us.
Now, we’d be fools to think that the majority of the Justices don’t have sides they are already prepared to take — only a fool would suggest otherwise. And about the court acting too much like a legislative entity, we might find common ground. But in this case one Justice has chosen to express said opinion publicly at some point, with complete disregard of even lip-service to impartiality. Recusing one’s self seems like an appropriate remedy.
Should we just allow that to pass without even so much as a comment?
I see DJ is baaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaack
tweell says:
No, it is the interpretation of ‘evidence’ in the article. Nothing more, nothing less. It’s like your interpretation that Clarence Thomas didn’t sexually harass Anita Hill, or that Antonio Scalia didn’t have a conflict of interest when he refused to step aside on a decision involving Dick Cheney and Cheney’s energy task force in 2007.
tweell says:
She was working on A law proposal, NOT “the” law. For that matter, so were thousands of other people. Using your logic, if she had sat on a similar case involving the health care law, then she would have to recuse herself.
I am not saying that she SHOULDN’T recuse herself. Just that if she is going to be held to that standard, so should the other justices.
And for your information, there isn’t anything “uncertain” about who Thomas and Scalia were having dinner with — they were all the actors involved in the opposition case that is going before the court, not just the one attorney. You want to diminish that importance by claiming that it is “uncertain”. It is anything but uncertain, the facts are there: two of the law firms involved in the case before the bench were the hosts for the evening.
LC Xealot says:
It would. Perhaps you can talk Scalia and Thomas into it also?
Oh wait, that’s right, they are likely to be on YOUR side, so you definitely would be against that.
I am no fan of this law as it was written. I would like nothing better than to see it go away, be scrapped, and started over. I have always considered this law to be nothing more than a gift to the insurance companies with the mandate that forces us all to purchase insurance from a private company whose sole interest is to generate a profit growth while providing as little payout as possible. A system that privatizes the profits and socializes the losses — much like Wall Street and the Banks did. (and will do again pretty soon)
Get ready for the $ quadrillion bank failures as those derivatives start to unravel…
LC Gladiator @ #11:
Not really — at least not to the point I once was. I come here once or twice a week now — that’s pretty much the limit I want to set for myself.
DJ Allyn, Private Citizen recently posted..Amos Moses ~ Jerry Reed
DJ Allyn, Private Citizen says:
I really hate quoting myself, but here goes:
So there. Only question remains is where’s the mention of “having dinner with somebody” in there? Because I’m having trouble seeing it.
Emperor Misha I recently posted..President Food Stamp Un-Saves and Un-Creates Another 200,000 Jobs in the Midst of Massive Unemployment
Emperor Misha I says:
Uh, wasn’t that quoting me?
Emperor Misha I says:
I thought I addressed that in #5 Who polices the Supreme Robes? The lower courts fall under the jurisdiction of the Supreme Court, but seriously, who is going to tell them what to do in a case like this? Impeachment in the House, conviction in the Senate? That will never happen. Besides, the Court can easily rule that the statute is unconstitutional as it encroaches on the duties and responsibilities of another branch of government.
And if you don’t see the glaring conflict of interest when a justice attends a meeting or dinner with a party to a pending case, then you are purposely overlooking it. It is right up there with accepting gifts.
Take a closer look at (a) again:
(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. [Emphasis mine]
I’m thinking that hanging out with the plaintiffs in a case might bring a judge’s impartiality into question, don’t you?
So there. Goose, meet gander. If you are going to be calling for recusal of one justice, apply it fairly across the activities of all of the justices. Just sayin’
DJ Allyn, Private Citizen recently posted..Amos Moses ~ Jerry Reed
By the way, in case anyone notices, the Jukebox is going to be shut down sometime this weekend for maintenance and an upgrade for WP 3.3 coming out next week. I am not sure, but I suspect that there will be a gaping hole in the sidebar during that time.
DJ Allyn, Private Citizen recently posted..Love of the Loveless – Eels
Thanks for the Jukebox, DJ. I really like it, there’s something for almost everyone there.
tweell says:
I try to get a variety of different stuff up there. I do take requests if you visit my site and leave one. Either my wife or I will get to them when we can.
DJ Allyn, Private Citizen recently posted..Love of the Loveless – Eels
I have found a great explaination here courtesy of BiW and I would believe a real live lawyer over a former radio host who is so marxist he has two left socks.
But, hey, just because marxism hasn’t worked anywhere it’s been tried doesn’t mean DJ can’t call for a new totalitarism again.
lc purple raider says:
I would prefer to defer to real live legal experts also. Funny thing about real live lawyers though… For every real live lawyer’s opinion, there will always be another real life lawyer’s opinion that says the complete opposite. I come from a long line of lawyers. Imagine what it is like when we get together during Thanksgiving.
That said, you should perhaps go back and read the part of my comments where I said that Kagen probably should recuse herself. So should Thomas and Scalia. But you will also see why they won’t. The Supreme Robes don’t apply the existing ethical code of conduct rules to themselves as they are applied to any of the lower courts. There is no Supreme Court policy on recusal — they just decide for themselves if they have a conflict of interest.
They all should recuse themselves. You only want a third of the loaf.
If you want the Supremes to adhere to the Code of Conduct for United States Judges, then you should support H.R. 862 – Supreme Court Transparency and Disclosure Act of 2011 Short of that, ain’t nobody recusing themselves on that bench.
Socialism and Communisim has worked in places — and still is. It doesn’t mean that I am calling for it here. (not that I understand what the hell that has to do with anything)
DJ Allyn, Private Citizen recently posted..Love of the Loveless – Eels
Dj:
Typically, you never read BiW’s piece. Or scanned it, and when it didn’t agree with your viewpoint, ignored it.
Go back to occupying your momma’s basement.
lc purple raider says:
I read it. I never actually said I disagreed with it — just that lawyer opinions are just like butt cheeks — everyone has at least two. Any good lawyer can argue any side of a legal argument at any time depending on who’s paying them. For every argument you put up here on this, I can show you the exact opposite argument put forth by legal “experts”.
I concede that Kagen should recuse herself. But I also say that Thomas and Scalia should also. I even go further and state that the likelihood of ANY of them stepping back is slim to none because they all feel that they are above all of that, and if THEY don’t feel they have a conflict, then they aren’t going to recuse themselves because there really isn’t any authority greater than them to enforce it.
I can’t help it if you cannot understand that I am merely pointing out WHY it isn’t going to happen.
Also, quit trying to cherry pick who to remove for conflict. ALL of those with a conflict should recuse even though I want to see this thing overturned.
lc purple raider says:
I think I will leave that one alone.
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DJ Allyn, Private Citizen recently posted..Love of the Loveless – Eels
Jukebox is going down for a while TOMORROW.
DJ Allyn, Private Citizen recently posted..Love of the Loveless – Eels
Well, if the marxist asshole won’t come to his coming to Jesus moment, Jesus can always come to the marxist.
From BiW:
And I have no idea why Scalia needs to recuse himself, except so that the marxists on the court would have a majority.
To quote John Kay, “you lose again.”
Kagen, as I and others explained before, directly worked toward the passage of Obama Death Care.
If you think that’s cherry picking, you are a waste of oxygen.
lc purple raider says:
Are you really that dense or do you just pretend here?
Do you think that Thomas is being asked to recuse himself because of Anita Hill?
Anita Hill only shows that he probably shouldn’t have been confirmed, but that ship sailed a long time ago. He’s there now, and Anita Hill is NOT the issue in this current case.
Do try to pay attention.
Since you are so intent on BiW’s legal “analysis”, I will use the exact same statute he did — except post the ENTIRE statute for people like you who can only see what is put in front of you:
Here is 28 U.S.C. § 455 in its entirety:
United States Code, Title 28, Section 455
Disqualification of Justice, Judge, or Magistrate
(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or a personal knowledge of disputed evidentiary facts concerning the proceeding;
(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer has been a material witness concerning it;
(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;
(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;
(5) He or his spouse, or a person within the the third degree of relationship to either of them, or the spouse of such a person:
(i) Is a party to the proceeding, or an officer, director, or trustee of a party;
(ii) Is acting as a lawyer in the proceeding;
(iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;
(iv) Is to the judge’s knowledge likely to be a material witness in the proceeding.
(c) A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household.
(d) For the purposes of this section, the following words or phrases shall have the meaning indicated:
(1) “proceeding” includes pretrial, trial, appellate review, or other stages of litigation;
(2) the degree of relationship is calculated according to the civil law system;
(3) “fiduciary” includes such relationships as executor, administrator, trustee, and guardian;
(4) “financial interest” means ownership of a legal or equitable interest, however small, or a relationship as director, advisor, or other active participant in the affairs of a party, except that:
(i) Ownership in a mutual or common investment fund that holds securities is not a “financial interest” in such securities unless the judge participates in the management of the fund;
(ii) An office in an educational, religious, charitable, fraternal, or civic organization is not a “financial interest” in securities held by the organization;
(iii) The proprietary interest of a policy holder in a mutual insurance company, of a depositor in a mutual insurance company, of a depositor in a mutual savings association, or a similar proprietary interest, is a “financial interest” in the organization only if the outcome of the proceeding could substantially affect the value of the interest;
(iv) Ownership of government securities is a “financial interest” in the issuer only if the outcome of the proceeding could substantially affect the value of the securities.
(e) No justice, judge, or magistrate shall accept from the parties to the proceeding a waiver of any ground of disqualification enumerated in subsection (b). Where the ground for disqualification arises only under subsection (a), waiver may be accepted provided it is preceded by a full disclosure on the record of the basis for disqualification.
(f) Notwithstanding the preceding provisions of this section, if any justice, judge, magistrate, or bankruptcy judge to whom a matter has been assigned would be disqualified, after substantial judicial time has been devoted to the matter, because of the appearance or discovery, after the matter was assigned to him or her, that he or she individually or as a fiduciary, or his or her spouse or minor child residing in his or her household, has a financial interest in a party (other than an interest that could be substantially affected by the outcome), disqualification is not required if the justice, judge, magistrate, bankruptcy judge, spouse or minor child, as the case may be, divests himself or herself of the interest that provides the grounds for the disqualification. [Emphasis Mine]
The funny thing about lawyers — they only tell you the parts they want you to hear, and omit or breeze by those areas they don’t.
BiW established a solid reason for Kagen to recuse herself and that is where he left it. He attempted to deflect the argument on Thomas by misdirection to Anita Hill — which isn’t the issue here.
What is at issue in the current case is several. First, the obvious one where you have two justices who have been keynote speakers in the past for the very people who have brought the lawsuit, and you have two justices who attend a dinner being hosted by several groups who represent one of the parties in the litigation. That might “reasonably question” a justices’ impartiality all by itself, don’t you think?
The fact that there is evidence of a personal bias on the part of both these justices given the groups they tend to hang with and for whom they’ve been honored guests or keynote speakers for the Federalist Society — a group that has been out front about challenging the health care reform act, and who provides resources and money to defeat this legislation.
Thomas has another barb on this. His wife, has been financially involved in the defeat of this legislation.
lc purple raider says:
lc purple raider says:
Isn’t that the reason you want to only go after Kagen? Because you feel that the case would pretty much be split on a 5-4 ruling to uphold?
I think that THREE of them should go sit down on this one, and any honest person reading the statute would have to agree.
But again, the likelihood of ANY of the justices recusing themselves is about as likely as you voting for the re-election of Obama.
lc purple raider says:
It IS cherry-picking on your part. There are obvious conflicts on THREE justices, you only want to pick on the one because it might tilt it in your favor.
Imagine for a moment things were switched around a bit and it was a Conservative judge who had worked on the legislation. Would you be defending with tooth and nail to keep that guy on the case? Of course you would.
But notice I am NOT defending Kagen staying. I have been agreeing that she should recuse herself — but you are apparently haven’t noticed.
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Ironically, the most famous modern case of a SC justice recusing himself came when Thurgood Marshall recused himself from Muhammed Ali’s Supreme Court appeal because he was Solicitor General and thus Ali’s prosecutor during the original Federal case.
Wait, why are you talking about Anita Hill, we were talking about recusing justices.
In your fevered, syphillis diseased mind, you think that since Clarence Thomas’s wife is involved in the Tea Party, he should recuse himself.
Bzzt. Sorry, nice try. We have some lovely parting gifts.
There is separation there between Thomas and Scalia, and the party who brought the lawsuit.
There is no separation between Kagan and Obama Death Care.
And please show Virginia Thomas’s W-2′s from the Federalist Society.
Oh, and I’m an honest person.
Not like someone who goes back on his word, like you.
I thought you were never coming back. Oh, well.
lc purple raider says:
Yes, among other reasons. It isn’t that she is just “involved” in the Tea Party, she is instrumental in it. There is a difference, you know. And it isn’t just the Tea Party, it is also the Heritage club, the Club for Growth, and another half-dozen groups whose main efforts are to defeat that particular bill.
So yes, there does appear to be a conflict of interest going on there, which is clearly spelled out in the very same statute you want to use on Kagen.
lc purple raider says:
Hey goofball, there IS no separation between the parties that brought the lawsuit. Besides, take a closer look at 28 U.S.C. § 455 (a) again:
There is plenty of grounds to “reasonably question” both Scalia and Thomas’ impartiality given the company they keep and the groups they attend.
lc purple raider says:
Hell, you had Clarence who failed to report her income because he “didn’t understand how to fill out the forms”
lc purple raider says:
I don’t even think you are being honest with yourself.
lc purple raider says:
If I wasn’t here, then who would you have to pick on?
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DJ Allyn, Private Citizen recently posted..Introducing the Apple iHole
Prove it please. No DUmmies, no Kostards, none of the other unbeloved marxist websites you cut and paste from.
“Because I say so.” Strawman arguement. Just because you say so doesn’t make it so.
I ask again, where are Virginia’s W-2′s? Leftist memes are not proof.
Ask Kayinsane, you certainly confided to her many things that have happened.
Don’t you have some bubblegum records to spin at that 10 watt radio station you work for?
lc purple raider says:
Translation: Unless you cite FOX News, World Net Daily, or quote Hannity, Beck or Limbaugh, then it isn’t true.
lc purple raider says:
Blah blah blah.
lc purple raider says:
Where are yours?
I am tired of arguing with an idiot. Nothing good ever comes from it.
DJ Allyn, Private Citizen recently posted..Introducing the Apple iHole
DJ Allyn, Private Citizen says:
Same ol’ Deej.
Same ol’ obfuscation.
‘Not here to inform, only to bump the traffic.
Don’t feed the trolls.
So, been argueing with yourself again.