Supreme Court Nominations

Likely Kagan Recusals Highlight Vague Standards for Justices

Elena Kagan has identified 11 cases in which she would recuse herself if she is confirmed to the U.S. Supreme Court because of work she did on the cases as solicitor general.

But she is not promising to step aside if the court considers the new health care legislation, the New York Times reports. Kagan told the Senate Judiciary Committee she had attended at least one meeting where the legislation was briefly mentioned, but none involving substantive discussion of litigation.

Eleven cases amount to more than 25 percent of the cases now pending before the Supreme Court, the Times says. According to the newspaper, the Kagan hearings “highlighted how vague the standards for recusal by Supreme Court justices are.” Justices rarely disclose why they recuse themselves from cases, although family and financial conflicts appear to be the most common reasons.

At least two recusal controversies have involved Justice Antonin Scalia. He opted not to participate in a Pledge of Allegiance case after he had discussed it in public. But he refused to withdraw from a case involving Vice President Dick Cheney’s energy task force, even though he had gone duck hunting with Cheney.

Related coverage: “Would Kagan’s Fundraising Prowess Bring Recusals? It Depends, Ethics Experts Say” Supreme Court: CEO’s Big Judicial Contributions Require Judge’s Recusal Guild Says Scalia’s Torture Remarks Merit Future Recusal

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