Chairman Leahy: Supreme Court Nominee Kagan’s Standard on Recusal ‘Appropriate’

By Nicholas Ballasy | June 29, 2010 | 7:32 PM EDT

Applause for President Obama's Supreme Court nominee Elena Kagan at the White House on Monday, May 10, 2010. (AP Photo/Susan Walsh)

( – Supreme Court nominee Elena Kagan testified she would recuse herself from “any case” in which she served as “counsel of record” or for which she had “signed any kind of brief” as solicitor general in the Obama administration.  Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) said that most senators found Kagan’s view on this issue “appropriate.”

During Tuesday’s hearing, Kagan said: “I think certainly, as I said in that questionnaire answer, I would recuse  myself from any case in which I've been counsel of record at any stage  in the proceedings, in which I signed any of kind of brief.”
On Capitol Hill, asked Senator Leahy: “Under 28, U.S. Code, subsection 455, a former government employee who becomes a Supreme Court justice is required to recuse themselves from any case where they’ve expressed an opinion while in government service. Do you think Elena Kagan should recuse herself from any case she’s expressed an opinion on?”
Leahy said, “She was asked questions about recusal and she made it very clear what her standard would be on that, and I think that most senators found those standards appropriate.”

Article 28, Section 455 of the U.S. legal code requires a former government employee who becomes a Supreme Court justice to recuse himself or herself from any case he or she expressed an opinion on while in government service.
The law says: “(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: … (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.”