Dems’ Recusal Demands Are ‘Another Totally Invented Standard’

‘It Is Widely Accepted That Justices Participate In Cases Important, Even Personally, To The Presidents Who Nominated Them’

“It is widely accepted that justices participate in cases important, even personally, to the presidents who nominated them. Three of President Richard M. Nixon’s nominees joined the unanimous court ruling against him in the decision requiring him to turn over White House tapes in a criminal investigation…. Likewise, Clinton nominees Ginsburg and Stephen G. Breyer were on the unanimous court that found Clinton had to answer Paula Jones’s lawsuit that accused him of sexual advances.” (“As Trump Cases Arrive, Supreme Court’s Desire To Be Seen As Neutral Arbiter Will Be Tested,” The Washington Post, 11/26/2019)

“[Justice Stephen] Breyer said it has to be a very high bar for a justice to step back. ‘If you’re in a court of appeals and you’re uncertain, you know, it’s a sort of borderline, take yourself out of it,’ Breyer said. ‘Because there are a lot of other judges who can step in.’ But on the Supreme Court, ‘If you take yourself out of a case, it could affect the result. And therefore, you have to be careful on the one hand to take yourself out of the case if there is an ethical conflict of some kind, and not to take yourself out of the case if there isn’t, because you have to participate.’” (“Exclusive: Justice Stephen Breyer On Politics And The Rule Of Law,” Axios, 3/22/2020)

Both Justice Sonia Sotomayor, Appointed By President Obama In 2009 And Justice Elena Kagan, Appointed By President Obama In 2010, Participated In Cases Involving The 2012 Presidential Election

Early voting in Ohio: Before the election, the Democratic National Committee and Obama for America obtained an injunction that prevented the State of Ohio from imposing certain limits on early in-person voting. See Obama for Am. v. Husted, 697 F.3d 423 (6th Cir. 2012). Ohio submitted to Justice Kagan an application to stay the injunction, which Justice Kagan referred to the full Court. On October 16, 2012, the Supreme Court denied the application, ruling in favor of the Democratic National Committee and Obama for America. Both Justices Sotomayor and Kagan participated. See Husted v. Obama for Am., 568 U.S. 970 (2012).

Campaign contributions in Montana: After several Republican-affiliated organizations obtained an injunction that prevented Montana from enforcing its campaign contribution limits during the run-up to the election, the Ninth Circuit stayed the injunction, fearing that it could throw the “imminent” election into “chaos.” Lair v. Bullock, 697 F.3d 1200, 1214 (9th Cir. 2012). The Republican-affiliated organizations filed an application to vacate the stay, but on October 23, 2012, the Supreme Court denied the application. Both Justices Sotomayor and Kagan participated. See Lair v. Bullock, 568 U.S. 974 (2012).

Voter registration in Texas: In late September 2012, the Ninth Circuit stayed an injunction that had prevented Texas from enforcing various restrictions on voter registration conducted by third parties. See Voting for Am., Inc. v. Andrade, 488 F. App’x 890 (5th Cir. 2012). The Supreme Court denied an application to vacate the stay on September 25, 2012. Both Justices Sotomayor and Kagan participated, and Justice Sotomayor stated that she would have granted the application in part. See Voting for Am., Inc. v. Andrade, 567 U.S. 967 (2012).

Ballot access in Michigan: Shortly before the election, the Sixth Circuit refused to grant emergency relief that would have ordered the State of Michigan to place Gary Johnson, the Libertarian candidate for President, on the Michigan ballot for the election. See generally Libertarian Party of Mich. v. Johnson, 714 F.3d 929, 931 (6th Cir. 2013). Johnson and the Libertarian Party submitted to Justice Kagan an application for similar emergency relief, which was opposed by the Republican Party of Michigan. Justice Kagan referred the application to the full Court, which denied the application on September 19, 2012. Both Justices Sotomayor and Kagan participated. See Libertarian Party of Mich. v. Johnson, 567 U.S. 966 (2012).

Proof of citizenship in Arizona: In the summer before the election, the en banc Ninth Circuit rejected an Arizona policy that imposed heightened requirements for establishing the proof of citizenship necessary to vote. See Gonzalez v. Arizona, 677 F.3d 383 (9th Cir. 2012) (en banc). The Supreme Court denied Arizona’s application to stay the decision of the Ninth Circuit. Both Justices Sotomayor and Kagan participated. See Arizona v. Abeytia, 567 U.S. 947 (2012).

Both Justice Ruth Bader Ginsburg, Appointed In 1993 By President Clinton, And Justice Stephen Breyer, Appointed By President Clinton In 1994, Participated In A Case Involving The 1996 Presidential Election

Election judges in Texas: In October 1996, Dallas County changed its method for appointing the election judges that would supervise polling precincts during the upcoming election. The new method was challenged for allegedly violating the Voting Rights Act, but a 3-judge panel rejected the challenge. See generally Foreman v. Dallas Cty., 990 F. Supp. 505, 507–508 (N.D. Tex. 1998). The challengers filed an application for an injunction and stay, but on October 29, 1996, the Supreme Court denied the application. Both Justices Ginsburg and Breyer participated.  See ibid.; Foreman v. Dallas Cty., 519 U.S. 957 (1996).

Justices Ruth Bader Ginsburg And Stephen Breyer Took Part In Cases To Which President Bill Clinton, Who Appointed Them To The Court, Was A Party

“Clinton nominees Ginsburg and Stephen G. Breyer were on the unanimous court that found Clinton had to answer Paula Jones’s lawsuit that accused him of sexual advances.” (“As Trump Cases Arrive, Supreme Court’s Desire To Be Seen As Neutral Arbiter Will Be Tested,” The Washington Post, 11/26/2019)

Justices Ruth Bader Ginsburg and Stephen Breyer both participated in Clinton v. Jones in 1997. (“Clinton v. Jones,” Oyez.org, Accessed 10/01/2020)

In a 1998 case, Office Of The President v. Office Of Independent Counsel, the Supreme Court declined to take the case, but Justices Breyer and Ginsburg both dissented, arguing the Court should have heard the case. (“OFFICE OF THE PRESIDENT v. OFFICE OF INDEPENDENT COUNSEL,” Cornell Law School Legal Information Institute, 11/09/1998)

In another 1998 case that the Supreme Court declined to hear, Robert Rubin, Secretary Of Treasury, et al. v. United States, Justices Ginsburg and Breyer both dissented, arguing the Court should have heard the case. (“ROBERT RUBIN, SECRETARY OF TREASURY, et al. v.UNITED STATES, through the independent counsel,” Cornell Law School Legal Information Institute, 11/09/1998)

• JUSTICE GINSBURG: “I agree with Justice Breyer that this Court, and not a Court of Appeals, ought to be the definitive judicial arbiter in this case. The matter is grave …” (“ROBERT RUBIN, SECRETARY OF TREASURY, et al. v.UNITED STATES, through the independent counsel,” Cornell Law School Legal Information Institute, 11/09/1998)

In 1997, Justices Ginsburg and Breyer joined the other justices in declining to take up a different Office of the President v. Office of Indep. Counsel case. 512 U.S. 1105 (1997).

Justice Elena Kagan Served As Solicitor General For The Obama Administration As That Office Began To Prepare For Litigation Involving The Affordable Care Act Yet Kagan Participated In The Cases Involving That Law

“President Obama nominated Solicitor General Elena Kagan as the nation’s 112th justice, choosing his own chief advocate before the Supreme Court to join it in ruling on cases critical to his view of the country’s future.” (“Obama Picks Kagan As Justice Nominee,” The New York Times, 5/09/2020)

“When the Supreme Court announced Monday that it will review President Barack Obama’s health care reform law this term, Justice Elena Kagan gave no indication that she will recuse herself from the cases the court plans to hear.” (“No Sign Elena Kagan, Clarence Thomas Will Recuse On Health Care Law,” Politico, 11/14/2011)

• “The charges against Kagan arise from her work as solicitor general, the government’s top appellate lawyer. If she were still in the job, Kagan would be defending the health-care law at the Supreme Court rather than deciding whether it is constitutional. Kagan was notified by the White House in March 2010 — just before the law was passed — that she was under consideration to be named to the high court. She said during her confirmation hearings that she played no role in preparing for the inevitable legal challenges that were to come.” (“Health-Care Case Brings Fight Over Which Supreme Court Justices Should Decide It,” The Washington Post, 11/27/2011)

• “Federal law requires judges, including those on the Supreme Court, to disqualify themselves when their ‘impartiality might be reasonably questioned,’ as well as for specific reasons such as a financial interest or the involvement of a family member in the litigation. In addition, it calls for recusal when the judge has served in the government and ‘participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case or controversy.’” (“Health-Care Case Brings Fight Over Which Supreme Court Justices Should Decide It,” The Washington Post, 11/27/2011)

“But … e-mails released… under public records requests raise questions about the White House’s contention she had been ‘walled off’ from discussions about the health-care act. One e-mail from then-Deputy Solicitor General Neal Katyal says Kagan wanted to make sure her office was involved in strategy decisions, although Katyal said he took the lead and Kagan was not involved.” (“Health-Care Case Brings Fight Over Which Supreme Court Justices Should Decide It,” The Washington Post, 11/27/2011)

• “Another e-mail seemed to indicate enthusiasm for the bill. In response to a message at the time of the vote from Harvard law professor Laurence H. Tribe, then working at the Justice Department, Kagan wrote: ‘I hear they have the votes, Larry!! Simply amazing.’” (“Health-Care Case Brings Fight Over Which Supreme Court Justices Should Decide It,” The Washington Post, 11/27/2011)

ELENA KAGAN: “I attended at least one meeting where the existence of the litigation was briefly mentioned, but none where any substantive discussion of the litigation occurred.” (“Health-Care Case Brings Fight Over Which Supreme Court Justices Should Decide It,” The Washington Post, 11/27/2011)

Justice Elena Kagan subsequently participated in two major Supreme Court cases on the Affordable Care Act, NFIB v. Sebelius in 2012 and King v. Burwell in 2015. ("National Federation of Independent Business v. Sebelius,” Oyez.org, Accessed 10/01/2020; “King v. Burwell,” Oyez.org, Accessed 10/01/2020)

Further Justices Named by Presidents Obama And Clinton Participated In Hundreds Of Cases In Which Presidents Clinton Or Obama Were A Named Party

Justice Ginsburg participated in at least 79 cases in which President Clinton was a named party.

Justice Breyer participated in at least 74 cases in which President Clinton was a named party.

Justice Sotomayor participated in at least 102 cases in which President Obama was a named party.

Justice Kagan participated in at least 91 cases in which President Obama was a named party.