Friday, April 27, 2012

To Recuse Oneself or Not? That is the Question...

by richmin3000

28 United States Code Section 455 is a federal law concerning the disqualification of justices and judges (supreme court judges are called justices while other federal judges are called judges). the law states, in part, the following:

(a) Any justice, judge, or magistrate judge of the United States
shall disqualify himself in any proceeding in which his
impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following
circumstances:
(1) Where he has a personal bias or prejudice concerning a
party, or personal knowledge of disputed evidentiary facts
concerning the proceeding;
...
(3) Where he has served in governmental employment and in such
capacity participated as counsel, adviser or material witness
concerning the proceeding or expressed an opinion concerning the
merits of the particular case in controversy;
(4) He knows that he, individually or as a fiduciary, or his
spouse or minor child residing in his household, has a financial
interest in the subject matter in controversy or in a party to
the proceeding, or any other interest that could be substantially
affected by the outcome of the proceeding;
(5) He or his spouse, or a person within the third degree of
relationship to either of them, or the spouse of such a person:
(i) Is a party to the proceeding, or an officer, director, or
trustee of a party;
(ii) Is acting as a lawyer in the proceeding;
(iii) Is known by the judge to have an interest that could be
substantially affected by the outcome of the proceeding;
...
 
on wednesday, the supreme court of these united states heard oral argument in the case of 'arizona v. united 
states' which concerns the constitutionality of the arizona immigration law (which i will try to review at a 
later date). in hearing this matter, only 8 justices will be on the bench as justice elena kagan has recused 
herself. (recusal means that she will not participate nor rule in this matter).
 
justice kagan was the united states solicitor general when the obama administration first brought a 
constitutional challenge to the arizona immigration law. (solicitor general means she was the legal 
representative or attorney prosecuting the matter for the obama administration). her recusal was honest, 
necessary and at the end of the day, her decision. it was also a big blow to the liberal attack on the 
immigration law.
 
earlier this year, clarence thomas was asked to recuse himself from the health care reform case, 'florida v. 
us dept of health and human services' due to his perceived partiality. you see, his wife is an outspoken 
fundraiser against the health care reform. justice thomas was chided last year for failing to include
in mandatory financial disclosures, his wife's income from tea party organizations and has made public 
appearances for conservative groups that oppose president obama's health care reform efforts. his wife 
clearly derives financial benefits from her work promoting the unconstitutionality of the health care 
legislation.
 
what's funny to me is not that justice thomas did not recuse himself. that was to be  expected and in fact, 
there were calls for justice kagan to recuse herself as well from the case, which she did not (though in 
fairness, the calls for justice kagan to recuse herself were not as warranted or loud). what's funny to me 
is that conservatives love attacking liberal judges as being "activist" which, for many reasons, is ridiculous. 
what is clear and obvious is that justice thomas, by not recusing himself, and making no attempt to hide his 
biases, is arguably the most activist judge in america and the most conservative. 

*to read more about the thomases and health care reform, click here.

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