LIANE HANSEN, host:
Now that U.S. Solicitor General Elena Kagan is a Supreme Court nominee, she has turned over her duties to her deputy. If she is confirmed, though, she'll have to disqualify herself from a significant number of cases. Kagan's prior involvement as the government's chief appellate advocate would present a conflict.
NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG: Responding to a question on the Senate Judiciary Committee's questionnaire, Kagan said that if confirmed, she would not participate in any case in which she signed the brief and that she would also look to the letter and spirit of the Code of Judicial Conduct for further guidance.
The rules on disqualification spelled out in the code are fairly straightforward, according to NYU legal ethics professor Stephen Gillers.
Professor STEPHEN GILLERS (Legal Ethics, New York School of Law): The basic rule is that if she worked on a case, whether or not her name is on the papers, she can't be a judge of that very case. End of story.
TOTENBERG: So what does worked on mean? According to Gillers and other experts, it means not only signing briefs, it means editing them, approving them, participating in discussions about what position the government should take in a given case. But if the case is in her office and she has not yet worked on it, then she does not have to recuse herself.
Perhaps surprisingly, the solicitor general does not typically involve herself in a case until just a few days before briefs are due to be filed. In an office that handles thousands of decisions on government appeals each year, the preliminary work is done by other lawyers in the office.
Carter Phillips served as assistant solicitor general in the Reagan administration.
Mr. CARTER PHILLIPS (Former Assistant Solicitor General, Reagan Administration): There are so many decisions that have to be made that it's hard to have the time to begin earlier than the last day or two before something has to be resolved.
TOTENBERG: But that is not always true. It is not uncommon for the solicitor general to have discussions about a major case with others inside an administration and also with outside lawyers who want the government to take this or that position. Phillips points, for example, to an important immigration case in which he represents the Chamber of Commerce.
Mr. PHILLIPS: The solicitor general sat in on meetings across the table from me to discuss that case. And it seems to me that it would be odd, at least, if she didn't think that was participation within the meaning of any rule.
TOTENBERG: So Kagan would likely have to recuse herself from that case, even though the government has not yet filed a brief and, when it does, her name won't be on it.
Phillips says these are the kinds of situations that likely would be the trickiest to sort out for a Justice Kagan. If she had a formal discussion about a case, the meeting is likely to be on her calendar. But what about a quick hit at the lunch table or in the hall? Will she even remember it, and if she does, does that constitute participation in a case?
Supreme Court advocate Tom Goldstein, founder of the leading Supreme Court blog, has scoured the record to determine how many and which cases Kagan is likely to be disqualified from.
Mr. TOM GOLDSTEIN (Founder, SCOTUSblog.com): I think the range of cases that Elena Kagan will have to step out of in the upcoming Supreme Court term will be somewhere between 15 and 20. So, around one out of every four or one out of every five cases.
TOTENBERG: Goldstein says most of those he's identified do not involve headline-grabbing controversies. As for some of the big controversies involving Obama administration initiatives like health care, she would not have to disqualify herself because she was not involved in a particular case.
Again, Tom Goldstein.
Mr. GOLDSTEIN: The fact that she talked with the administration hypothetically about health care or detainees or campaign finance wouldn't really trigger an obligation for her not to decide the case. The recusal line is probably: Did I get involved in this lawsuit as a lawyer? As opposed to: Did I get involved in the issue?
TOTENBERG: Thus, for example, Chief Justice John Roberts had to recuse himself from a major detainee case in his first year because he'd ruled on the case as a lower court judge. But when similar issues came up later in other cases, he did not recuse. Bottom line: For Kagan, as it was for Roberts, after a year or two the recusals go away.
Other bottom line: In the last analysis, it is the individual justice who makes the decision on whether she will recuse. There's no appeal from that decision.
Nina Totenberg, NPR News, Washington.
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