Skip to comments.Legal Eagles...Please Help...Kagan Recusal(s)
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).
Let’s suppose you are right.
How will having one more liberal judge hearing the case make it better for the good guys?
What happens if there is a tie?
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.
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.
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.
4 to 4 assumes Kennedy sides with the liberal opinion. I don’t see that happening.
I suspect they may have another idea: hoping that they lose to use this as a way to fire up Dims.
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.
Will the “wise latina” recuse herself, based on her endorsement of the ethnicity of most of those affected by this law?
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.
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?
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
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.
she will not recuse herself. leftists believe it is impossible for them to have a conflict of interest
Sotomayor was born in New York, of Puerto Rican ancestry. Both New Yorkers and Puerto Ricans are U.S. citizens.
But I dont see how it harms us.
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.
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