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Washington - Justice Kavanaugh Unlikely To Heed Calls For Recusal

Published on: October 11, 2018 09:38 AM
By: Reuters
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Supreme Court Associate Justice Brett Kavanaugh during his ceremonial swearing in the East Room of the White House in Washington, DC, USA, 08 October 2018. EPASupreme Court Associate Justice Brett Kavanaugh during his ceremonial swearing in the East Room of the White House in Washington, DC, USA, 08 October 2018. EPA

Washington - Justice Brett Kavanaugh is unlikely to heed calls by critics to step aside from certain politically charged U.S. Supreme Court cases in which his fairness and independence might be questioned after a divisive confirmation fight, according to legal experts.

U.S. law requires justices to step aside when there is a conflict of interest or genuine question of bias, but it leaves the recusal decision in the hands of the individual justices.

Kavanaugh, Republican President Donald Trump’s conservative nominee who was confirmed by the Senate on Saturday to a lifetime job as one of the nine justices, took part in his first arguments in Supreme Court cases on Tuesday and Wednesday. [nL2N1WM046]

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“Supreme Court justices rarely recuse,” University of Michigan Law School professor Richard Primus said. “For Kavanaugh to recuse would be for him to say, ‘Yes, I understand you don’t trust me ... and I validate that concern.’ He’s not going to say that.”

Federal law requires a justice to disqualify himself from deciding cases “in which his impartiality might reasonably be questioned.” In a 2011 report, conservative Chief Justice John Roberts said he had “complete confidence in the capability of my colleagues to determine when recusal is warranted.”

Recusal demands by Kavanaugh critics including Democratic lawmakers and liberal commentators focused on two main areas: certain cases involving Trump himself; and cases involving Democratic Party lawmakers or interests, considering Kavanaugh’s angry remarks about Democrats during a Sept. 27 Senate hearing. Some also have suggested Kavanaugh should step aside in cases on women’s issues in light of sexual misconduct allegations made against him last month. He denied the allegations.

Over the years, justices across the political spectrum have been pressed by critics to recuse themselves in cases with perceived conflicts. Litigants can file motions seeking recusal but rarely do.

During the 2016 presidential race, liberal Justice Ruth Bader Ginsburg criticized then-candidate Trump as a “faker,” prompting cries by conservative critics of bias. Ginsburg later expressed regret for her remarks but has not stepped aside from any case involving Trump. And no litigant has asked her to.

Despite calls from some conservatives for her to recuse herself, liberal Justice Elena Kagan participated in a 2012 ruling upholding President Barack Obama’s Affordable Care Act, the healthcare law dubbed Obamacare. Kagan had served as Obama’s top Supreme Court advocate when the law was enacted in 2010 but said she played no role in its conception.

Kagan, appointed to the court by Obama later in 2010, recused herself from other cases on which she had worked in Obama’s administration. For example, she stepped aside when the court twice upheld the use of race as a factor in university student admissions, a policy known as affirmative action.

‘POLITICAL HIT’

Some liberal activists and Democratic lawmakers have pointed to Kavanaugh’s Senate Judiciary Committee testimony responding to a university professor’s allegation that he sexually assaulted her in 1982 as evidence of his partisanship. He repeatedly assailed Democrats, prompting questions about whether he could be fair in disputes involving Democrats or liberal groups.

Kavanaugh complained of “a calculated and orchestrated political hit” by Democrats fueled by their anger over Trump’s 2016 election victory, and called the conduct of some Democratic senators “an embarrassment.”

Democrats including Senator Mazie Hirono and Representative Jerrold Nadler have called on Kavanaugh to step aside from any case involving Democratic lawmakers.

New York University School of Law legal ethics expert Stephen Gillers said Kavanaugh’s remarks were “too broad and unfocused to give anyone the basis for a recusal motion.”

During his confirmation hearings, Kavanaugh refused to be pinned down on whether he would recuse himself in cases involving Trump such as Special Counsel Robert Mueller’s investigation into potential collusion between Trump’s presidential campaign and Russia.

“One key facet of the independence of the judiciary is not to make commitments on particular cases,” including on recusal, Kavanaugh told Democratic Senator Richard Blumenthal.

If Kavanaugh recused himself in such cases, the court would go from a 5-4 conservative majority to an ideological deadlock with four conservative justices and four liberals.

Kristen Clarke, president of the Lawyers’ Committee for Civil Rights Under Law advocacy group, said she expected a “sharp increase” in recusal motions regarding Kavanaugh on a range of issues, possibly including women’s rights. Kavanaugh could become a pivotal justice on issues including abortion.

Justices commonly step aside in cases that pose financial conflicts, for example owning stock in a company involved in the litigation.

In 2004, the Sierra Club environmental group asked conservative Justice Antonin Scalia to step aside in a case concerning then-Vice President Dick Cheney, a friend of the justice. Scalia refused, saying he did not think his impartiality could reasonably be questioned.

Emmet Bondurant, a lawyer involved in a major political case heading toward the court involving a challenge to Republican-drawn congressional districts in North Carolina, said he will not seek Kavanaugh’s recusal.

“One has to assume that no matter what was said during the confirmation process that he will approach each case, including this case, with an open mind,” Bondurant said.



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Read Comments (11)  —  Post Yours »

1

 Oct 11, 2018 at 10:26 AM Anonymous Says:

More political gaming by the Dems. They have no shame, no boundaries, and no moral backbone. I wish that anyone with such traits find success only outside of politics.

2

 Oct 11, 2018 at 10:40 AM Moose Says:

Well said #1

3

 Oct 11, 2018 at 11:38 AM Eduacted Archy Says:

So basically he should be a judge in name only but never actually do his job , just based on the long laundry list.

Maybe the dems should recuse themselves from bringing up cases against the republicans because of their obnoxious behavior towards him and trump. They are also partisanship. And should Ruth Ginsburg recuse herself on any dem vs repub case because she is a staunch dem?

Brett only dished out altitude to those that treated him like dirt. It takes two to tango.

4

 Oct 11, 2018 at 11:40 AM Sociologist Says:

Reply to #1  
Anonymous Says:

More political gaming by the Dems. They have no shame, no boundaries, and no moral backbone. I wish that anyone with such traits find success only outside of politics.

And the Republicans have shame, boundaries and a moral backbone??

5

 Oct 11, 2018 at 12:37 PM chachom Says:

My original thought was to call Sens Schumer and Gillebrand and object to this behavior.
Now I am realizing that it is better to let them rant and rave as it seems to be effecting them negatively in the polls.

6

 Oct 11, 2018 at 01:44 PM Butterfly Says:

I think we may have a problem with Hizonor Kavanaugh! He is biased on certain things and that is what they are putting in his lap!!

7

 Oct 11, 2018 at 02:19 PM Anonymous Says:

Reply to #4  
Sociologist Says:

And the Republicans have shame, boundaries and a moral backbone??

Yes! They would NEVER do what the Dems did to Brett Kavanaugh. And yes an “orchestrated political hit” is exactly what it was. However it was not successful only because Mitch McConnell and rest of Senate Leadership.

8

 Oct 11, 2018 at 03:36 PM georgeg Says:

Reply to #6  
Butterfly Says:

I think we may have a problem with Hizonor Kavanaugh! He is biased on certain things and that is what they are putting in his lap!!

Kavanaugh is no more biased than, as example, Ginsburg. In fact, Ginsburg targeted Trump by name during elections (eh - prejudicing elections?) before Trump even did anything, as example when she stated, in one of her rare interviews, what she imagined her deceased husband would have said had he been alive:

> ‘Now it’s time for us to move to New Zealand,’” Justice Ginsburg said, smiling ruefully.

9

 Oct 11, 2018 at 03:56 PM Educated Archy Says:

Reply to #6  
Butterfly Says:

I think we may have a problem with Hizonor Kavanaugh! He is biased on certain things and that is what they are putting in his lap!!

you thought wrong yoni. he is not baised. fake news.

10

 Oct 11, 2018 at 08:30 PM Looney Liberals Says:

To all my liberal friends remember payback is a …………

You reap what you sow.

To the victors go the spoils.

That being said, cry me a river.

11

 Oct 11, 2018 at 09:37 PM Vivi Says:

Reply to #5  
chachom Says:

My original thought was to call Sens Schumer and Gillebrand and object to this behavior.
Now I am realizing that it is better to let them rant and rave as it seems to be effecting them negatively in the polls.

You read my mind. I hope they keep up their vile antics and vicious behavior straight through to elections, so republicans will continue to be fired up against them! EVERYONE MUST GO OUT AND VOTE!

12

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