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Legal Eagles...Please Help...Kagan Recusal(s)
12-12-11 | Self

Posted on 12/12/2011 1:16:31 PM PST by CincyRichieRich

I'm concerned. Rush didn't pick up on this like I thought he would today. When I saw the DrudgeReport headline, I smiled, but then when Rush DID say the SCOTUS "ties", i.e., "4" to "4" revert back to the next highest court ruling, I recalled the Arizona Immigration case last ruling was not favorable ***AND*** I recall the last Obamacare ruling also was split, but VERY much in favor of the commerce clause, which will destroy the nation as we know it if it stands. Then I suspected Kagan is doing this on purpose, meaning, she will I predict recuse herself in Obamacare as well hoping for a tie just like Arizona Immigration.

I almost feel like saying like Rush, "Don't doubt me on this".

This sucks and I believe that is what is going on and going to happen.

I don't see 5 votes against the commies on either case.

Pray for God's sovereign hand to move mountains (of paper).


TOPICS: Constitution/Conservatism; News/Current Events; Politics/Elections; Your Opinion/Questions
KEYWORDS: kagan; kaganrecusal; obamacare; scotus; supremecourt
Need help from legal eagles...I may have mashed this up...I am not too proud to ask for help explaining.
1 posted on 12/12/2011 1:16:40 PM PST by CincyRichieRich
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To: CincyRichieRich

Let’s suppose you are right.

How will having one more liberal judge hearing the case make it better for the good guys?


2 posted on 12/12/2011 1:26:37 PM PST by farmguy
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To: mrreaganaut

legal ping


3 posted on 12/12/2011 1:28:09 PM PST by reaganaut (Romney IS Obama - just 'white and delightsome' 2 Nephi 30:6)
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To: CincyRichieRich

What happens if there is a tie?


4 posted on 12/12/2011 1:28:21 PM PST by napscoordinator (Anybody but Romney, Newt, Perry, Huntsman, Paul. Perry and Obama are 100 percent the same!!!!!)
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To: CincyRichieRich

How does eliminating a surefire vote against AZ and FOR Obamacare help the Left?

i.e., if Kagan didn’t recuse and Kennedy waffled, it would be 5-4 for Obama on these cases, and after Kagan’s recusal, it might be 4-4 upholding these cases on a tie.

But I don’t see how it harms us.


5 posted on 12/12/2011 1:28:37 PM PST by Elpasser
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To: CincyRichieRich
You're right in a sense, but we're certainly no worse off with her recusing herself than if she was casting a vote, which we know would be on the liberal side.

Also, given that the Supreme Court opinions are sometimes fragmented, it is possible (though unlikely), that her recusal could have a material effect if the controlling opinion ends up being only a plurality opinion.

In any case, the truth is that ObamaCare still comes down to one person -- Anthony Kennedy. As he goes, so goes the Supreme Court because we need that 5th vote. He's more sensitive than most to how cases are perceived by the public, which is a good thing in this case because ObamaCare isn't popular with voter. That makes it more likely that he'll toss the thing. If it had strong public support, I doubt he would.

6 posted on 12/12/2011 1:29:07 PM PST by Bruce Campbells Chin
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To: CincyRichieRich
Kagan has recused in many, many cases (including the Arizona immigration case which the Court agreed to hear today). She has not recused in the Obamacare cases. (When she recuses, she announces it at the time the Court announces that it will hear the case; she made no such announcement in the Obamacare cases). Generally, she has recused whenever her name was on the court papers the DOJ filed in SCOTUS or in the lower courts.

If the Court is split 4-4, the result is that the lower court's decision (whichever court was immediately below SCOTUS) stands, but the SCOTUS ruling is not considered precedent so it is not binding on any lower courts.

7 posted on 12/12/2011 1:32:16 PM PST by Lurking Libertarian (Non sub homine, sed sub Deo et lege)
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To: CincyRichieRich

4 to 4 assumes Kennedy sides with the liberal opinion. I don’t see that happening.


8 posted on 12/12/2011 1:32:50 PM PST by KMG365
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To: CincyRichieRich

I suspect they may have another idea: hoping that they lose to use this as a way to fire up Dims.


9 posted on 12/12/2011 1:34:18 PM PST by Ingtar (Newt (four more for Obama) & Mitt (Obamacare) - what wonderful choices!)
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To: CincyRichieRich
You are right, a 4 - 4 tie will sustain the lower court opinion, but will not be precedent - that is, lower courts do not have to follow the Supreme Court Decision as if it affirmatively upheld the lower court decision.

That being said, I have a different take. I believe she is recusing herself on these lesser cases (in this case, she has little choice, she was involved with the Administrations fight against Arizona) - in order to NOT recuse herself on Obamacare. She has recused herself numerous times already, appropriately. She has credibility on this issue and will have support if she stays on with the Obamacare case.

You need 4 Justices to agree to hear a case to grant it certiorari. I assume Kagan did not participate in that, but that is not public. However, she did not publicly recuse herself like she did here, so I would guess she is staying in.

10 posted on 12/12/2011 1:35:33 PM PST by dan on the right
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To: KMG365

Will the “wise latina” recuse herself, based on her endorsement of the ethnicity of most of those affected by this law?


11 posted on 12/12/2011 1:44:10 PM PST by research99
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To: CincyRichieRich
Look, for obummer to win it would require the reversal of DeCanas v Bica, a case that was decided 9 to 0.
12 posted on 12/12/2011 1:45:36 PM PST by org.whodat (Just another heartless American, hated by "AMNESTY" Newt, Willard, Perry and his fellow supporters)
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To: reaganaut; napscoordinator

IIRC, the lower court ruling is considered as not overturned. The case can be reheard with the missing Justices, but I don’t see that as helpful in this case.

Kennedy is probably the swing vote whether or not Kagan participates. Having said that, even the libs on the Court might feel the mandate to be too much of a stretch of the Commerce Clause; lower courts are often more liberal than the Supreme Court, precisely because the lower courts have the freedom of NOT being the final word.


13 posted on 12/12/2011 1:46:52 PM PST by mrreaganaut (Stupidity killed the cat. Curiosity was framed.)
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To: CincyRichieRich

If Kagan does not recuse herself, she would be in violation of the Federal statute calling for recusal according to many legal experts. Of course, Congress could take action on impeachment. But, could anyone else or any other entities (states?, executive branch after 2013) have standing against Kagan for violating this law?


14 posted on 12/12/2011 1:51:26 PM PST by grumpygresh (Democrats delenda est; zero sera dans l'enfer bientot.)
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To: CincyRichieRich

I believe the Kagan recused herself on this one because there was ample reason for her to have to..... And, she probably counted the votes and figured, correctly, a four-four tie reverts back to the lower courts ruling. This was mentioned by other posters.

Now, here is the important piece. She WILL NOT recuse herself on the Obamacare case. That one is a big, big Democrat deal..... And, she will argue that she rightfully recused herself on the Arizona immigration case but that there is no probable reason for her to recuse herself re Obamacare, proving to all that she is a very balanced and fair-minded Justice. And then the vote could come out as a 5-4 supporting Obamacare. It will all depend on Justice Anthony Kennedy’s vote


15 posted on 12/12/2011 1:51:38 PM PST by AlphaOneAlpha
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To: CincyRichieRich

Adding some clarity...

Tie means it goes to the latest/last ruling from lower court.

This is “taking away” a liberal from the 9 total justices,creating likely ties if some of GHWB’s or GWB’s appointees vote with the Marxists. That’s the point I’m trying to make.


16 posted on 12/12/2011 1:54:24 PM PST by CincyRichieRich (Keep your head up and keep moving forward!)
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To: CincyRichieRich

she will not recuse herself. leftists believe it is impossible for them to have a conflict of interest


17 posted on 12/12/2011 1:56:22 PM PST by GeronL (The Right to Life came before the Right to Pursue Happiness)
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To: research99
Will the “wise latina” recuse herself, based on her endorsement of the ethnicity of most of those affected by this law?

Sotomayor was born in New York, of Puerto Rican ancestry. Both New Yorkers and Puerto Ricans are U.S. citizens.

18 posted on 12/12/2011 1:57:09 PM PST by Lurking Libertarian (Non sub homine, sed sub Deo et lege)
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To: Elpasser

But I don’t see how it harms us.


Ties go back to the LAST ruling of the highest lower court. Those both have not been favorable.


19 posted on 12/12/2011 1:57:59 PM PST by CincyRichieRich (Keep your head up and keep moving forward!)
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To: napscoordinator

Then Obama gets to cast the deciding vote. Read it - its right there in the new Amended Constitution of the United States according to Barack Hussein.


20 posted on 12/12/2011 2:02:18 PM PST by ZULU (Anybody but Romney or Huntsman)
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To: mrreaganaut

Thank you for that explanation. Sometimes it gets tricky and you explained it perfectly.


21 posted on 12/12/2011 2:02:39 PM PST by napscoordinator (Anybody but Romney, Newt, Perry, Huntsman, Paul. Perry and Obama are 100 percent the same!!!!!)
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To: org.whodat

Look, for obummer to win it would require the reversal of DeCanas v Bica, a case that was decided 9 to 0.


Look, I said I need help from legal eagles; that must be you...without being a smart alec, can you explain that?


22 posted on 12/12/2011 2:07:44 PM PST by CincyRichieRich (Keep your head up and keep moving forward!)
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To: CincyRichieRich

Right. In the absence of a “definitive ruling” from a higher court the lower court ruling stands. A tie is not definitive.

No one can force Kagan to recuse herself. A supreme court justice is not subject to a federal statute which is a creation of Congress. Separation of powers. It would be Unconstitutional. But statutes may cover all other federal judges as they were not recognized in the Constitution (just the Supremes).

If Kagan proceeds in the face of a conflict of interest, then she could be impeached (ha) but it would be too late to affect this case or even Obamacare case. They would be long since decided.


23 posted on 12/12/2011 2:08:51 PM PST by shalom aleichem
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To: CincyRichieRich
Not a legal eagle, the case was about a state law in California making it illegal to hire illegals, the court said the congress had sole authority to decided who would become citizens and how. They had no authority to do anything about the state law. In short they upheld the state law. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=424&invol=351
24 posted on 12/12/2011 2:15:57 PM PST by org.whodat (Just another heartless American, hated by "AMNESTY" Newt, Willard, Perry and his fellow supporters)
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To: CincyRichieRich

De Canas v. Bica (1976), in which the Supreme Court emphatically declared that federal immigration laws did not prohibit the states from enforcing the policies embodied by those federal immigration laws. (In that case, the state law was a California prohibition against the employment of illegal aliens.) The Court reviewed the text and history of the federal Immigration and Nationality Act, and found no indication that “Congress intended to preclude even harmonious state regulation touching on aliens in general, or the employment of illegal aliens in particular.” According to the Court, states may enforce laws consistent with federal immigration laws, so long as the state does not “impose additional burdens not contemplated by Congress.”


25 posted on 12/12/2011 2:41:16 PM PST by Repeal The 17th (We have met the enemy and he is us.)
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To: CincyRichieRich

I agree with the other posters who think it’s a very obvious strategy: she recuses herself on Arizona, which gives her cover for NOT recusing herself on Obamacare.

Then she can’t be accused of being unwilling to recuse herself.

Never mind that Arizona has nothing to do with Obamacare.

These people never stop scheming.


26 posted on 12/12/2011 3:00:27 PM PST by Blue Ink
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To: org.whodat; Repeal The 17th

Thanks for the explanations. Do supreme court rulings, present, future, have to agree with past rulings? Just asking.


27 posted on 12/12/2011 3:06:19 PM PST by Rannug ("God has given it to me, let him who touches it beware.")
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To: Rannug

Yes, and if not all prior cases where the case was cited become questionable. I ran across this case reading the Texas illegals education case, people over look the fact the court said you did not need to educate illegals if you deported them. After I read that I think it is actually legal for a state to deport illegals. ///????? The justice department has argued feeling in this case not law.


28 posted on 12/12/2011 3:19:36 PM PST by org.whodat (Just another heartless American, hated by "AMNESTY" Newt, Willard, Perry and his fellow supporters)
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To: CincyRichieRich
Need help from legal eagles...I may have mashed this up...

A vanity such as this requires only one solution: one strong martini, followed an hour later by a glass of warm milk, then go to bed........sheesh!

29 posted on 12/12/2011 3:25:58 PM PST by Hot Tabasco (Be good, Santa is coming)
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To: CincyRichieRich

More help


30 posted on 12/12/2011 5:26:27 PM PST by Randy Larsen (I'm backing Newt!)
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To: dan on the right

You are absolutely 100% correct in your asessment.

She is recusing herself on a few other court cases for public image, to set herself up for not recusing herself on the grand enchilada (Obamacare)

You can set your watch to the actions of anybody remotely connected to this administration. They are so so very predictable....


31 posted on 12/12/2011 5:41:41 PM PST by neverbluffer
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To: shalom aleichem

Not quite true, as Congress can establish, limit or withdraw the jurisdiction of the courts over certain cases.

The only practical way to enforce the statute regarding recusals is for impeachment, which, of course, is dead on arrival in the Senate.


32 posted on 12/12/2011 7:48:57 PM PST by nd76
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