Sen. Specter: 'Appropriate' for Kagan to Recuse Herself From Cases on Which She Took 'Formal Position’ As Solicitor General

By Nicholas Ballasy | July 1, 2010 | 8:59 PM EDT

( -- Sen. Arlen Specter (D-Penn.), a member of the Senate Judiciary Committee, told that Supreme Court nominee Elena Kagan recusing herself from any case she took a “formal position” on as solicitor general would be an “appropriate position to take” under the applicable federal law. 
The law says recusal is warranted even when a government employee-turned-justice had “expressed an opinion concerning the merits of the particular case in controversy." 

On Capitol Hill, asked Specter the following:  “I want to ask you about that questionnaire that nominee Kagan sent to the Judiciary committee. In it she said she would quote, ‘follow the letter and spirit’ of U.S. code 28 section 455, which says that a Supreme Court justice who was formally a government employee should disqualify herself or himself in any case in which he quote, ‘expressed an opinion concerning the merits’ when he was working for the government, he or she. Do you think Kagan should recuse herself for expressing a view on a case when she was solicitor general, now as the nominee?”
Specter answered, “Well, she has commented to the effect that she would recuse herself where she had taken a formal position as solicitor general. Recusal is traditionally something that the individual decides for himself or herself. But under the applicable federal law, that is an appropriate position to take to avoid any suggestion of bias.”

During the second day of her confirmation hearing, Supreme Court nominee Elena Kagan said to Judiciary Chairman Patrick Leahy (D-Vt.), “I think, certainly, as I said in that [committee] 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.”
She continued, “I think that there are probably about 10 cases. I have not counted them up particularly, but I think that there are probably about 10 cases that are on the docket next year in which that is true; in which I have been counsel of record on a petition for certiorari or some other kind of pleading. So that is a flat rule.”

She also said, “In addition to that, I said to you on the questionnaire that I would recuse myself in any case in which I had played any kind of substantial role in the process.”
In the questionnaire she submitted to the Senate Judiciary Committee before her confirmation hearings began, Kagan said, “If confirmed, I would recuse in all matters for which I was counsel of record. I would also look to the letter and spirit of the Code of Conduct for United States Judges (although it is not formally binding on members of the Supreme Court of the United States), the Ethics Reform Act of 1989, 28 U.S.C. 455, and any other relevant prescriptions. I would also consult with my colleagues in any case where recusal might be advisable.”
Article 28, Section 455 of U.S. Code requires a former government employee who becomes a Supreme Court justice to refuse 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.”
When asked if he thought Kagan should recuse herself from any cases she expressed an opinion on while in government service, Chairman Leahy said most senators found Kagan’s explanation during the hearing “appropriate.”
“She was asked questions about recusal and she made it very clear what her standard would be on that and I think most senators found those standards appropriate,” said Leahy.