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.
Thank you for that explanation. Sometimes it gets tricky and you explained it perfectly.
Look, for obummer to win it would require the reversal of DeCanas v Bica, a case that was decided 9 to 0.
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.
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.”
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.
Thanks for the explanations. Do supreme court rulings, present, future, have to agree with past rulings? Just asking.
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.
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!
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....
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.