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Thread: Kagan recused! Is Sotomayor next?

  1. Default Kagan recused! Is Sotomayor next?

    I wonder what prompted this decision?:

    “Justice Elena Kagan recused herself from the Arizona challenge, a break with her decision to hear the challenge of the president’s healthcare law.”

    My guess is that there is a hell of a lot more tying Kagan to the immigration law than the stuff connecting her to the healthcare law where she refuses to recuse. I cannot see her willingly recusing herself from the Arizona immigration case when the loss of her vote might hurt Hussein. If there is nothing embarrassing lurking in the shadows there must be a political reason she recused; a reason too devious for this amateur sleuth to uncover.

    No matter how the case goes this popular political assumption always makes me scratch my head:

    Since Obama’s reelection hinges on his ability to carry Latino voters and to minimize the loss of white, blue-collar voters, the court’s decision on the Arizona law carries enormous political implications for both parties.

    Obama won 67 percent of the Hispanic vote in 2008 but only 43 percent of the white vote, according to the Pew Research Center. Hispanics are a particularly important voting bloc in several states that shifted from Republicans to Democrats in 2008, including New Mexico, Colorado and Nevada. They are also a key demographic in the swing state of Florida and in Arizona, a target for Democrats.

    Supremes inject court into the 2012 campaign on health and immigration
    By Justin Sink - 12/12/11 08:31 PM ET


    NOTE: There is not one state where Latinos are the majority. Think about that in relation to the Electoral College.

    ACORN notwithstanding, I am pretty sure illegal aliens cannot vote in any election. So the assumption must be that every Latino-American will vote for Hussein & Company in 2012 because Democrats not only encourage more illegal immigration, but give illegals more Rights and assistance than Latino-Americans enjoy, indeed, more than every American gets.

    Kagan is gone but Sotomayor remains.

    Now that Kagan has recused herself Justice Sotomayor should recuse herself, too. A fair question is: Why?

    Answer: The very first sentence of 28 U.S.C. § 455 : US Code - Section 455 says this:

    (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.


    Challenging Sotomayor’s impartiality is more than reasonable based on her track record:

    A Quota Queen for the Court
    by Patrick J. Buchanan

    If the U.S. Senate rejects race-based justice, Sonia Sotomayor? will never sit on the Supreme Court.

    Because that is what Sonia is all about. As The New York Times? reported Saturday, the salient cause of her career has been advancing persons of color, over whites, based on race and national origin.

    "Judge Sotomayor?, whose parents moved to New York from Puerto Rico," writes reporter David Kirkpatrick, "has championed the importance of considering race and ethnicity in admissions, hiring and even judicial selection at almost every stage of her career."

    At Princeton, she headed up Accion Puertorriquena, which filed a complaint with the Department of Health, Education and Welfare demanding that her school hire Hispanic teachers. At Yale, she co-chaired a coalition of non-black minorities of color that demanded more Latino professors and administrators.

    At Yale, she "shared the alarm of others in the group when the Supreme Court prohibited the use of quotas in university admissions in the 1978 decision Regents of the University of California v. Bakke."

    Alan Bakke was an applicant to the UC medical school at Davis who was rejected, though his test scores were higher than almost all of the minority students who were admitted. Bakke was white.

    After Yale, Sotomayor joined the National Council of La Raza and the board of the Puerto Rican Legal Defense Fund. Both promote race and ethnic preferences, affirmative action and quotas for Hispanics.

    But why should Puerto Ricans like Sotomayor, who were never subjected to slavery or Jim Crow -- their island was liberated from Spain in 1898 by the United States -- get racial or ethnic preferences over Polish- or Portuguese-Americans?

    What is the justification for this kind of discrimination?

    Like Lani Guinier?, the Clinton appointee rejected for reverse racism, Sonia Sotomayor is a quota queen. She believes in, preaches and practices race-based justice. Her burying the appeal of the white New Haven firefighters, who were denied promotions they had won in competitive exams, was a no-brainer for her.

    In her world, equal justice takes a back seat to tribal justice.

    Now, people often come out to vote for one of their own. Catholics for JFK, evangelicals for Mike Huckabee?, women for Hillary Clinton?, Mormons for Mitt Romney, Jews for Joe Lieberman and African-Americans for Barack Obama. That is political reality and an exercise of political freedom.

    But tribal justice is un-American.

    In the 1950s and 1960s, this country reached consensus that denying black men and women the equal opportunity to advance and succeed must come to an end. Discrimination based on race, color or ethnicity, we agreed, was wrong.

    Sotomayor, however, has an exception to the no-discrimination rule. She believes in no discrimination, unless done to white males and to benefit people like her.

    How can any Republican senator vote to elevate to the Supreme Court a judge who, all her life, has believed in, preached and practiced race discrimination against white males, without endorsing the Obama-Sotomayor view that diversity trumps equal justice, and race-based justice should have its own seat on the high court?

    Down the path Sotomayor would take us lies an America where Hispanic justices rule for Hispanics, black judges rule for blacks and white judges rule for white folks.

    It is an America where who gets admitted to the best colleges and universities is not decided on grades and academic excellence, but on race and ethnicity, where advancement in jobs and careers depends not on aptitude and ability, but on where your grandparents came from.

    On principle, Republicans cannot support Sonia Sotomayor.

    And politically, if they do, why should the white working man and woman ever vote Republican again, as it is they who are the designated victims of the race-based justice of Sonia Sotomayor?

    It was Richard Nixon? who brought the white working class, North and South, into his New Majority, when he increased the Republican presidential vote from 43 percent in 1968 to 61 percent in 1972. Ronald Reagan? solidified this base.

    But why should the white working and middle class stay with the GOP? Its presidents exported their jobs to Mexico, China and Asia, and threw open America's doors to tens of millions, legal and illegal, from the Third World, who have swamped their cities and towns. If the GOP will not end race-based affirmative action, which threatens the futures of their children, why vote for the GOP?

    Why should white folks vote for anyone who says, "We are against race discrimination, unless it is discrimination against you"?

    Obama would not have selected Sotomayor if he did not share her convictions. And there is nothing in his writings or career to hint at disagreement. Thus it comes down to the senators, especially the Republicans. A vote for Sonia Sotomayor is a vote to affirm that race-based justice deserves its own seat on the U.S. Supreme Court.

    But if that happens, it will not only be the race consciousness of Hispanics that will be on the rise in the good old U.S.A.

    Patrick J. Buchanan is a nationally syndicated columnist and author of Churchill, Hitler, and "The Unnecessary War": How Britain Lost Its Empire and the West Lost the World, The Death of the West, The Great Betrayal, A Republic, Not an Empire, Where the Right Went Wrong, and most recently Suicide of a Superpower: Will America Survive to 2025?


    The basic test of freedom is perhaps less in what we are free to do than in what we are free not to do. It is the freedom to refrain, withdraw and abstain which makes a totalitarian regime impossible. Eric Hoffer

  2. Default

    I may be reaching on this one:

    "I have complete confidence in the capability of my colleagues to determine when recusal is warranted," Roberts wrote. "They are jurists of exceptional integrity and experience whose character and fitness have been examined through a rigorous appointment and confirmation process."

    He did not mention any justices by name.

    but it seems to me that the Chief Justice is sending a message to Kagan and Sotomayor: “Do the right thing for the team.”

    Chief Justice defends colleagues on high court
    Chief Justice John Roberts defended his colleagues Saturday in the face of a growing controversy over whether two Supreme Court justices should disqualify themselves from the challenge to the 2010 health-care law.
    By Robert Barnes

    The Washington Post

    WASHINGTON — Chief Justice John Roberts defended his colleagues Saturday as "jurists of exceptional integrity and experience" and said it was a misconception that Supreme Court justices do not follow the same set of ethical principles as other judges.

    In his year-end report on the federal judiciary, Roberts for the first time addressed a growing controversy about when justices should recuse themselves from cases and whether a code of conduct that covers lower-court judges also should apply to the justices.

    The recusal issue has been most prominent as the court prepares to address the constitutionality of the health-care law.

    Groups on the right have demanded that Justice Elena Kagan withdraw from the court's consideration of the case because of her work for President Obama as solicitor general. Liberal groups have called on Justice Clarence Thomas to recuse himself because of the conservative political activities of his wife, Virginia Thomas. There is every indication that both justices intend to participate in the health-care case.

    "I have complete confidence in the capability of my colleagues to determine when recusal is warranted," Roberts wrote. "They are jurists of exceptional integrity and experience whose character and fitness have been examined through a rigorous appointment and confirmation process."

    He did not mention any justices by name.

    Federal law requires that judges disqualify themselves when they have a financial interest in a case, have given advice or expressed an opinion "concerning the merits of the particular case" or when their "impartiality might reasonably be questioned." For lower-court judges, such a decision can be reviewed by a higher court, but the Supreme Court has no such review.

    Roberts said the Supreme Court's unique status made it impossible for the justices to follow the practices of lower-court judges in recusal matters. Lower-court judges can be replaced if they decide to disqualify themselves, he said, and their decisions about recusal can be reviewed by higher courts.

    "The Supreme Court does not sit in judgment of one of its own members' decision whether to recuse in the course of deciding a case," he wrote. "Indeed, if the Supreme Court reviewed those decisions, it would create an undesirable situation in which the court could affect the outcome of a case by selecting who among its members may participate."

    The Supreme Court is expected to decide the fate of the 2010 health-care law by the end of June, just as the 2012 presidential campaign enters its crucial final months.

    Roberts also addressed critics who say Supreme Court justices should be bound by the same code of judicial ethics that applies to other federal judges.

    He pointed out that the justices voluntarily follow the same rules, but said they should not be bound by them.

    Justices consult the Judicial Conference's Code of Conduct as a "starting point," but it cannot answer all questions, he said.

    Justices may also "turn to judicial opinions, treatises, scholarly articles and disciplinary decisions" and seek advice from experts and colleagues.

    Material from The New York Times is included in this report.


    The basic test of freedom is perhaps less in what we are free to do than in what we are free not to do. It is the freedom to refrain, withdraw and abstain which makes a totalitarian regime impossible. Eric Hoffer

  3. #3
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    A very corrupt administration. Disgusting - all of it.

  4. Default

    Only one Democrat, Ben Nelson of Nebraska, voted against confirming Elena Kagan, and he is not seeking reelection. The five phoney conservatives who voted to confirm are the ones who should retire. What were Senators Lindsey Graham of South Carolina, Richard Lugar of Indiana, Olympia Snowe and Susan Collins of Maine, and Judd Gregg of New Hampshire thinking when they voted to confirm Elena Kagan?

    Somebody should ask the five RINO/CINO if they would change their votes today? Put The Affordable Care Act aside and check the final paragraph in the following article:

    Supremes asked to remove judge from Obamacare
    'Kagan has not been in the least bit subtle in her opinion regarding the act'
    by BOB UNRUH

    The attorney who founded Judicial Watch, became a thorn in the side of presidents in court including Bill Clinton, inspired a “West Wing” character and was the first lawyer to obtain a court ruling that a president committed a crime has filed a request with the U.S. Supreme Court that Elena Kagan either remove herself or be removed from the Obamacare case.

    The friend-of-the-court brief in cases demanding the “recusal or disqualification of Justice Elena Kagan” was filed today by Larry Klayman, now of Freedom Watch USA.

    Klayman, known for tackling corruption in the nation’s capital, recently was awarded a default judgment in a case brought against Iran President Mahmoud Ahmadinejad on behalf of victims of his government’s torture campaign. Damages have yet to be established, but estimates are it could surpass the hundreds of millions.

    Kagan has been facing criticism for her apparent decision to participate in the Obamacare case, which is to be argued in coming weeks, because she served Obama as solicitor general when the law was being developed. Emails indicate she was rooting for it, and she may even have strategized on how to defend it in court.

    Klayman’s request comes in the case National Federal of Independent Business et al. vs. Kathleen Sebelius, as well as Florida et al. v. Department of Health and Human Services.

    Sign the petition opposing Obamacare.

    The rulings at the lower level determined Obama could not constitutionally demand that every American buy the health insurance program that the government specifies – a key requirement for his Obamacare nationalization of health care to succeed. Obama’s Department of Justice appealed.

    Klayman’s brief says his organization is “dedicated to preserving freedom, pursuing individual rights and civil liberties, while fighting for ethics in government and the judicial system.”

    Obamacare, he says, “is seeking to intrude into citizens’ rights, regulating private and intimate aspects of an individual’s life without regard to the Constitution. In doing so, the government is expanding the scope of its limited and enumerated powers to a level never before seen.”

    Noting that a majority of Americans oppose Obamacare, he says his organization “seeks to provide the means and mechanism to protect American citizens’ rights.”

    Toward that goal, he writes, he is seeking “the recusal, and, if necessary, disqualification of Justice Elena Kagan in the decision of the constitutionality of [Obamacare].”

    “She participated in crafting a defense for the constitutionality of the act. She therefore acted as counsel to the drafters in developing a strategy to defend the law,” his brief states. “This role should disqualify Justice Kagan under 28 U.S.C. Paragraph 455(a) because her ‘impartiality might reasonably be questioned.’”

    The brief explains Kagan’s case is different from that of Justice Clarence Thomas, who Obamacare supporters want removed from the case because of the actions of his wife, an opponent of the law.

    A WND request of the Supreme Court for a comment did not generate a response.

    “Kagan’s involvement is not a matter of another member of her family playing a partisan role concerning the act,” Klayman writes. “Her past involvement is personal and direct. The case to recuse or disqualify Justice Kagan is thus much stronger.”

    He cites statements in emails that reveal “Kagan’s personal bias in favor of the act.”

    Among the evidence cited is an email from March 21, 2010, when Kagan, “then senior counselor for access to Justice Laurence Tribe, wrote, ‘I hear they have votes Larry!! Simply amazing . . . ‘ Tribe then responded, ‘So healthcare is basically done! Remarkable.’”

    Additionally, on March 16, 2010, there was an email from Kagan to David Barron, asking if he had seen a Wall Street Journal article on the issue.

    And Deputy Solicitor General Neal Katyal told Kagan in a 2009 email, “We just got [Olympia] Snowe on health care.”

    Klayman writes, “Without a neutral, unbiased Supreme Court, there simply is no rule of law and any decision concerning the act will be seen as illegitimate.”

    He notes that Chief Justice John Roberts, in his annual report on the court, said the justices “need not follow the recusal and disqualification ethics rules that pertain to other judges.”

    “Incredibly, and to add insult to injury, he added that ‘(t)he Supreme Court does not sit in judgment of one of its own members. . . .’ This admission, among others in the report, says it all and ironically underscores why recusal or disqualification of Justice Kagan is necessary to preserve the integrity of the Supreme Court for the citizens of the United States,” Klayman says.

    “The court does not belong to either Chief Justice Roberts or any other justice; it belongs to ‘We the People.’ And, if the justices cannot adhere to the rule of law, which includes judicial ethics, then the court must be stripped clean of this lawlessness by removing and prosecuting, through whatever legal means are available, those justices who refuse and fail to play by the same rules that they hold citizens and others accountable for.”

    Klayman contends the evidence is clear.

    “While serving as solicitor general, Justice Kagan took significant part in health care reform issues and the crafting of the act, participating even by her own concession in at least one meeting in which what became the act was discussed. It is also believed that before the act was even passed, the Department of Justice had, in fact, been meeting to develop a strategy for defending the law from constitutional attacks. Involved in these efforts was Justice Kagan,” the brief states.

    “Given her extensive participation in the passage of the act in addition to her incriminating exchanges and emails evidencing her favoritism toward the constitutional of the law, it is clear that Justice Kagan should recuse,” the brief says.

    Federal law requires that any judge “shall disqualify himself in any proceedings in which his impartiality might reasonably be questioned.”

    “Kagan has not been in the least bit subtle in her opinion regarding the act, brazenly displaying her support of the legislation,” the brief says.

    The strategizing on behalf of Obamacare may even include the White House, he says.

    “By nominating a justice who had been a fellow proponent of the legislation, President Obama was choosing ‘the judge in his own cause,’” the brief says. “This creates, at the very least, an appearance of a quid pro quo, with the public having a reasonable belief that President Obama selected Justice Kagan in exchange for her ruling on the constitutionality of the act.”

    Klayman says, “The strength of this court’s rulings all stem from the high regard that the citizens of the country hold in our judicial system. If the partiality of this court comes into contention on this or any other decision, it is the Supreme Court as an institution that will suffer. Thus, in order to prevent further erosion of the integrity of the court, this court must seek to disqualify Justice Kagan if she does not recuse herself.”

    Rep. Lamar Smith, the top Republican on the House Judiciary Committee, earlier suggested the Obama administration was stirring up the problem of Kagan’s neutrality by refusing to release documents that provide her specific role in advocating for Obamacare.

    Referring to the 18-minute gap in the Nixon tapes, he said Kagan had a “two-month gap.”

    WND previously reported a former federal appeals court clerk has confirmed Kagan’s advocacy for health care policy dates back to the Clinton administration.

    She’s also had a special advocacy role in previous issues, including First Amendment limitations, the advance of homosexuality and protection of the government of Saudi Arabia.


    The basic test of freedom is perhaps less in what we are free to do than in what we are free not to do. It is the freedom to refrain, withdraw and abstain which makes a totalitarian regime impossible. Eric Hoffer

  5. Default

    Quote Originally Posted by Flanders View Post
    I wonder what prompted this decision?:

    “Justice Elena Kagan recused herself from the Arizona challenge, a break with her decision to hear the challenge of the president’s healthcare law.”
    I don't see where she recused herself. She took no part in the decision to grant cert on this case. That doesn't mean anything beyond what it says.

    And as far as recusing herself from the health care law, I don't see why she would. She does not have a fiduciary interest in it. Unlike Justice Thomas, who does. He's actually the one that more likely should recuse himself. However, neither Justice will, and I don't think it will affect the decision. They both have long legal careers during which I'm sure both of them made decisions against their own personal feelings or prior employers.

    Regular yokels see this as a big deal, but attorneys do not.
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  6. Default

    Quote from OP:

    “The very first sentence of 28 U.S.C. § 455 : US Code - Section 455 says this:

    (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.”

    After reading Sotomayor’s own words in the following article it is clear she should recuse herself in every case where race plays a part no matter how small of a part. To claim otherwise is nothing more than sophistry:

    Judging Sotomayor
    Mike Adams
    Feb 14, 2012

    Supreme Court Justice Sonia Sotomayor spoke to the interns of the House and Senate in June of 2010. At a Q&A afterwards, she was asked multiple questions from interns on a wide variety of topics including negative law and utilitarianism, conflicts of legal views and personal views, and the Yale/Harvard situation then pending in the court.

    One of my former students, a senate intern, got up to ask a question and was the very last one allowed to speak. He asked her "What should American culture and society look to as the source for just laws?" Justice Sotomayor paused, looked at him for a long time, and slowly said, "What a very interesting question." She then looked at my former student again for a very long time. Finally she very slowly said, "I don't think I've ever thought of that question in that form before."

    When she finally got around to answering, Justice Sotomayor proceeded to say that when making decisions, she focuses on the dignity of the individual. She then confessed she didn't know how we all would judge; saying that’s just what she focuses on. It was really fascinating for a young intern to hear. It really appeared to him – and to other interns present - that she really had not asked herself that question before. It reminded me of a speech Sotomayor once gave at UC-Berkeley. I now revisit some of her remarks from that speech – not so much for what it says about Sotomayor but for what it says about the future of America under the leadership of a postmodern judiciary:

    Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.

    This is an important admission on Sotomayor’s behalf. One can imagine how experiences color one’s perception of facts. But is race so central to the judgment of cases that it justifies the avoidance of certain facts altogether? Does race blind us to certain facts? Not according to Sotomayor. It simply justifies the willful disregard of certain facts.

    For people of color and women lawyers, what does and should being an ethnic minority mean in your lawyering? For men lawyers, what areas in your experiences and attitudes do you need to work on to make you capable of reaching those great moments of enlightenment which other men in different circumstances have been able to reach? For all of us, how do we change the facts that in every task force study of gender and race bias in the courts, women and people of color, lawyers and judges alike, report in significantly higher percentages than white men that their gender and race has shaped their careers, from hiring, retention to promotion and that a statistically significant number of women and minority lawyers and judges, both alike, have experienced bias in the courtroom?

    Bizarre isn’t it? In a rambling fashion Sotomayor – a supporter of race preferences – complains that race shapes one’s career path. Only a couple of paragraphs after an admission that her race justifies her willful disregard of facts, she complains that race bias still exists in the courtroom.

    Each day on the bench I learn something new about the judicial process and about being a professional Latina woman in a world that sometimes looks at me with suspicion. I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me require. I can and do aspire to be greater than the sum total of my experiences but I accept my limitations. I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate.

    But are our judgments merely the sum total of our experiences? That is what my former student was asking Justice Sotomayor. He wanted to know whether there is some transcendent source of justice to which we turn. Are we to answer to a Higher Authority when we judge? Or do we simply judge in accordance with the narrative of our own experience? If so, how do we ever transcend bias? Is that even a goal to which we aspire?

    There is always a danger embedded in relative morality, but since judging is a series of choices that we must make, that I am forced to make, I hope that I can make them by informing myself on the questions I must not avoid asking and continuously pondering. We, I mean all of us in this room, must continue individually and in voices united in organizations that have supported this conference, to think about these questions and to figure out how we go about creating the opportunity for there to be more women and people of color on the bench so we can finally have statistically significant numbers to measure the differences we will and are making.

    Yes, there is a danger imbedded in relative morality. It is that it follows our conduct rather than preceding our conduct. It is that it justifies our conduct rather than informing our conduct. And that is precisely why we must search for a source of justice – or a Source of Justice – that is not contingent upon our own perceptions or experiences.

    We may well choose to wake up tomorrow and renounce the Law of Gravity. But that doesn’t mean we are free to float among the clouds. Increasingly, judges are doing something similar with the Moral Law. That is why we see a judiciary with its feet now planted firmly in mid-air.

    I’m proud of my former Summit Ministries student – the Senate intern who asked Justice Sotomayor that question. But I’m a little disturbed she had never heard the question before. That means no one in the actual Senate raised the question during her confirmation. And that confirms some suspicions I’ve had for quite some time.


    The basic test of freedom is perhaps less in what we are free to do than in what we are free not to do. It is the freedom to refrain, withdraw and abstain which makes a totalitarian regime impossible. Eric Hoffer

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