Legal Ethics

Would Kagan’s Fundraising Prowess Bring Recusals? It Depends, Ethics Experts Say

U.S. Supreme Court nominee Elena Kagan raised about $303 million in a fundraising campaign when she was dean of Harvard Law School, a feat that set a record for all law schools.

But will that accomplishment create conflicts leading Kagan to recuse herself in some cases if she is confirmed as a Supreme Court justice? It’s a possibility, ethics experts tell the Associated Press.

Former donors could end up as parties with cases before the Supreme Court, and in some cases that could create a conflict, according to New York University Law School professor Stephen Gillers. ”You need two things. You need a contribution so large that we could say that Dean Kagan would feel a sense of great personal gratitude and then you need a case in which the donor had a significant personal or business interest before the court,” Gillers told AP.

University of Pittsburgh law professor Arthur Hellman told the wire service that Kagan likely wouldn’t have to recuse herself if lawyers or law firms that donated to Harvard Law School represented clients before the Supreme Court. The link wouldn’t be substantial enough, he said.

Jack Levin, a partner at Kirkland & Ellis, agreed. He told AP he doesn’t think his firm’s $3 million donation to Harvard for a classroom renovation would give Kirkland an advantage before the Supreme Court. ”People like Elena Kagan deal with hundreds and hundreds of people and once that’s over, they don’t owe them any allegiance,” Levin said.

AP also listed these donations by law firms and lawyers:

• Sidley Austin established a visiting professorship of law.

• John Cogan Jr., former chairman of the law firm now known as WilmerHale, gave at least $6 million.

• Skadden Arps partner Joseph Flom helped established a center for health law policy for the school.

• Wachtell, Lipton, Rosen & Katz donated, but AP didn’t specify the amount.

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