Abstract

http://ssrn.com/abstract=1721568
 


 



Judicial Disqualification When a Solicitor General Moves to the Bench


Ronald D. Rotunda


Chapman University, The Dale E. Fowler School of Law

November 7, 2010

Engage: The Journal of the Federalist Society’s Practice Groups, Vol. 11, No. 3, p. 94, November 2010
Chapman University Law Research Paper No. 10-38

Abstract:     
It has been over forty years since a Solicitor General has moved to the High Court. Now that Elena Kagan has followed in Solicitor General Thurgood Marshall’s footsteps, she has to navigate a strict judicial disqualification statute that did not exist in 1967, when he became Supreme Court Justice.

Although Kagan initially said that she would only disqualify herself in if she was on the brief, she responded differently when confronted with a specific statute that requires Kagan to disqualify herself in every case where, as a government employee, she participated as a lawyer or as an adviser or expressed an opinion, whether written or oral, concerning the particular case in controversy. Thus far, she has disqualified herself in about 50% of the cases her first term of court.

That percentage may not drop substantially for the next year or so. For example, she may have to disqualify herself in cases testing the constitutionality of the new medical care overhaul, popularly called Obamacare, if she earlier expressed an opinion about cases now in litigation.

As a consequence, Senator Leahy has proposed legislation that would authorize retired Supreme Court justices to return to the Court to decide cases when one or more of the Court's members are recused. This bill, however, raises significant constitutional problems. In 1937, Chief Justice

Hughes, in response to FDR’s Court-Packing proposal, advised that it would not only be unwise for the Court to sit in panels, but it would appear to violate the Constitutional requirement that there shall be “one” Supreme Court.

Number of Pages in PDF File: 6

Keywords: Disqualification, Judicial Recusal, Constitutional Law, Judicial Ethics, Solicitor General, Professional Responsibility

JEL Classification: K00, K10, K19, K30, K40, K41

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Date posted: December 9, 2010 ; Last revised: December 15, 2010

Suggested Citation

Rotunda, Ronald D., Judicial Disqualification When a Solicitor General Moves to the Bench (November 7, 2010). Engage: The Journal of the Federalist Society’s Practice Groups, Vol. 11, No. 3, p. 94, November 2010; Chapman University Law Research Paper No. 10-38. Available at SSRN: http://ssrn.com/abstract=1721568

Contact Information

Ronald Daniel Rotunda (Contact Author)
Chapman University, The Dale E. Fowler School of Law ( email )
One University Drive
Orange, CA 92866-1099
United States
HOME PAGE: http://www1.chapman.edu/~rrotunda/
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