Supreme Court nominee Judge Brett Kavanaugh walks along the hallways of the Russell Senate Office Building on  July 11, 2018. Credit: Diego M. Radzinschi / NLJ

In the wake of Supreme Court nominee Brett Kavanaugh’s angry testimony before the Senate Judiciary Committee last week, some commentators are predicting that if confirmed, he may face calls for recusal in a range of cases, including those that involve entities he lashed out at.

His comments “disqualify him from participating in a wide range of the cases that may come before the Supreme Court,” Harvard Law School professor Laurence Tribe wrote in a New York Times opinion piece Monday. “The judge himself has unwittingly provided the most compelling argument against his elevation to that court.”

Also on Monday, Politico’s Playbook wondered in print, “Kavanaugh believes he was the subject of a campaign by the Clintons to discredit him, and he criticized the media and the Senate. Won’t he have to bow out of any case that has to do with partisan politics, or the press?”

The short answer: probably not.

Here is a rundown of four categories of cases that have been mentioned as recusal triggers for Kavanaugh:

➤➤ Entities that Kavanaugh has attacked: In his heated comments Thursday, Kavanaugh asserted the new scrutiny on his alleged sexual misconduct is the fault of Senate Democrats and “has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election … revenge on behalf of the Clintons, and millions of dollars in money from outside left-wing opposition groups.” Would he have to recuse himself in cases involving those adversaries? Probably not, though he might be urged to do so in cases involving specific parties he named, such as the Clintons or the Democratic Party. But even in those cases, recusal would not be a sure thing. Justice Ruth Bader Ginsburg, after all, didn’t recuse herself in cases in which President Donald Trump is a named party, even though Ginsburg publicly and specifically criticized Trump during the 2016 campaign.

➤➤ Organizations that opposed Kavanaugh’s nomination: The American Civil Liberties Union, a frequent litigant before the Supreme Court, took the rare step on Saturday of opposing Kavanaugh’s confirmation, supplemented by television ads lumping him together with Bill Cosby and others accused of abusing women. Does that mean Kavanaugh would or should recuse himself in ACLU cases?

Some justices have recused themselves in cases brought by individuals who testified against them. After his 1986 confirmation hearings, the late Chief Justice William Rehnquist recused in several cases filed by James Brosnahan of Morrison & Foerster, who testified against him as a nominee. Justice Clarence Thomas recused in cases handled by the late William Moffitt, who testified against him on behalf of the National Association of Criminal Defense Lawyers. While the justices did not explain their actions, neither Brosnahan nor Moffitt at the time could think of any other reason for recusal.

Hofstra University law professor James Sample, an expert on recusals, said that in such cases, “for a transitional period, recusal might be properly erring on the side of respect for appearances.” But in the long term, he said, that practice could invite parties to “game the system” by opposing a nominee with the goal of forcing him or her off their cases.

➤➤ Issues Kavanaugh has expressed opinions about: Because of his stated views on executive power and on other issues that might relate to whatever emerges from the Russia probe, some have said Kavanaugh should pledge to recuse himself in cases that raise those issues. Tribe even suggested that in light of the recent allegations, Kavanaugh should perhaps recuse himself from “any case involving sexual assault or harassment.” But again, such recusals would be unlikely unless Kavanaugh criticized a specific lower court decision that ended up before the Supreme Court. In 2003, the late Justice Antonin Scalia recused himself in Elk Grove Unified School District v. Newdow, which challenged the words “under God” in the Pledge of Allegiance, but only because, in a public appearance, he had made it clear that he did not like the lower court opinion in the case.

➤➤ Cases that Kavanaugh participated in as a D.C. Circuit judge: This is the category likely to produce the most Kavanaugh recusals. In his 12 years on the D.C. Circuit, Kavanaugh has ruled on cases that have been or will be appealed to the Supreme Court. Issues ranging from religious discrimination to the Obama-era Clean Power Plan and appeals by Guantanamo detainees could face him quickly after he joins the court. The federal judicial code of conduct calls on judges not to rule on cases they participated in earlier as a judge.

Supreme Court justices are not obliged to adhere to the code, though they usually do. If Kavanaugh is confirmed, Sample said, he would be bestowed with “one of the many profound perks of the Supreme Court—the perk of judging his own impartiality without review.”

 

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