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Would a Justice Kagan be Sidelined?

Discussion in 'Politics, Elections & Legislation' started by wireguy, Jul 1, 2010.

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  1. wireguy

    wireguy TS Member

    Jan 29, 1998
    From Fox News:

    Would a Justice Kagan be Sidelined?
    July 1, 2010 - 5:45 PM | by: Shannon Bream
    Though there has been plenty of partisan bickering during this week's confirmation hearing for Supreme Court nominee Elena Kagan, there is at least one issue raising concerns on both sides of the aisle. There are questions about how many cases Kagan would have to sit out if she's confirmed, and just how willing she would be to do that.

    As Solicitor General, the government's top lawyer before the high court, Kagan has been involved with a number of cases that will show up during the Supreme Court's fall term. On Tuesday she testified, "I think that there are probably about 10 cases that are on the docket next year ... in which I've been counsel of record on a petition ... or some other kind of pleading."

    Kagan added that there could be even more cases from which she may need to recuse herself.

    That could put the court in a tough spot, at a time the Justices are taking criticism about their increasingly light caseload. Kagan could find herself unable to vote more than 15 percent of the time, leaving an even number of Justices to make the call. If there is a tie the lower court decision remains unchanged, meaning the high court may not truly resolve the cases at all.

    Some senators, including Judiciary Committee Chairman Patrick Leahy (D-VT), say that's a small price to pay in order to maintain the Court's integrity. Leahy warns that if the public sees a Justice taking part in a case he or she has an interest in it "erodes the credibility of the Court." He added, "I'm very concerned about that, no matter whether it's a Republican president's nominee or a Democratic president's nominee."

    The committee's top Republican, Senator Jeff Sessions (R-AL), agrees "a judge shouldn't hesitate to recuse themselves if they think that they in any way can be influenced by a prior event."

    One case of particular concern to Senator Jon Kyl (R-AZ), who also sits on the Committee that will decide whether Kagan makes it to a full Senate vote, involves a 2007 Arizona law that punishes employers who hire illegal immigrants. Both the District Court and 9th Circuit Court of Appeals upheld the statute, and the Supreme Court has announced it will hear the case next term.

    The Supreme Court's decision to hear the appeal came after the office of the Solicitor General weighed in, something Kyl confronted Kagan about during this week's hearings. "Ultimately, you decided to ask the Supreme Court to take the case and strike down the employer sanctions that are critical to making the Arizona law work," Kyl said. He was clearly displeased that Kagan's office would use its influence to attack a law aimed at confronting the problem of illegal immigration in Arizona.

    Kagan explained that an assessment of the law led her staff to believe it goes beyond the powers a state can rightfully exercise. Having weighed in, it is likely just one of the cases Kagan will skip should she be confirmed in time for the next term.
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