This afternoon, Sens. John Barrasso (R-WY) and Jeff Sessions (R-AL) engaged in a colloquy on the Senate floor, where they argued — falsely — that Supreme Court nominee Elena Kagan must recuse herself from cases challenging the Affordable Care Act. During this colloquy, both senators asserted the radical proposition that only judges who agree with them are allowed to decide cases:
MR. BARRASSO: I want to make sure if [health care litigation] gets to the Supreme Court, that there are people on the Court who side with…what, to me the 10th Amendment means and what to my colleagues and my friends and the people of Wyoming what the 10th Amendment means, which the government can’t come into your homes and say you must do this. You must buy this product.
MR. SESSIONS: Well, I think that’s exactly correct.
Barrasso has a bad habit of claiming that his personal beliefs must also be shared by the public at large. Yesterday, for example, he implied that people who support Don Berwick’s appointment to head the Centers for Medicare & Medicaid Services are un-American. And Barrasso does not understand legal ethics any better than he understands public opinion.
Kagan has not done anything that would require her to recuse herself from the health care litigation if she becomes a justice. Federal law requires judges who are former government officials to recuse only when they “participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.” In other words, a judge must have been a lawyer, adviser, or witness in the exact same lawsuit that is now before their court before they are required to recuse. Kagan has not served as an attorney in the health care litigation because none of these cases have reached an appeals court, and the Solicitor General normally only becomes involved in federal litigation at the appellate level, if at all.
Contrary to Barrasso and Sessions’ claim, there is nothing in the federal law that requires a judge to recuse themselves simply because they disagree with John Barrasso or Jeff Sessions.