Would a Justice Kagan Sidestep Gay Issues?



President Barack Obama announced Monday that Elena Kagan, current U.S. solicitor general and former dean of the Harvard Law School, is his second nominee to the U.S. Supreme Court.

Should Congress confirm Kagan, however, it’s possible that she would recuse herself from several cases, including major gay rights suits, currently being handled by the Justice Department during her short tenure.

The cases in question include Gill et al v. Office of Personnel Management et al, a suit challenging a section of the Defense of Marriage Act that was argued in federal court last week, and Log Cabin Republicans v. United States of America, a case involving “don’t ask, don’t tell.”

Kagan’s ability to rule in those lawsuits as a Supreme Court justice would depend on the amount of input she had in them while serving at the Justice Department. Though neither case is currently before the court, Ronald D. Rotunda, a professor of law at Chapman University, said Kagan might have taken part in the preparation.

“She may have had a role in [deciding] how the litigation proceeds, because the government wants to have a proper procedural posture in order to decide what positions it will take,” Rotunda said.

This is true for cases across the board. “There is no reason to single out LGBT-related issues," said Richard W. Painter, a professor at University of Minnesota Law School. "The recusal would apply to all cases she was involved with on any issue.”

It’s not always clear in which cases the solicitor general’s office has given its input, however. “If her name is on any [legal] brief, then it’s clear, but beyond that, it’s up to her disclosure,” said Erwin Chemerinsky, founding dean of the University of California, Irvine, School of Law.

While the decision would be left to Kagan, Chemerinsky said a recusal in, for instance, the Gill case challenging DOMA could prove problematic for LGBT advocates.

"If Kagan recuses herself, it certainly will hurt the challengers to DOMA because Stevens -- or his replacement -- would be so important for the challengers," he said. Based on the makeup of the court, conservatives and progressives could deliver a possible 4-4 split, which would mean that
the lower circuit ruling would remain law. The court’s split decision
would not set a precedent.

In a Monday afternoon press briefing, White House spokesman Robert Gibbs said the administration expects “about a dozen” recusals for Kagan next year and “less than half of that” the following year. But he did not name specific cases and he said he did not think the potential effect of her recusal on any cases had been given serious consideration during the nomination process.

By comparison, Justice Thurgood Marshall, who served two years at solicitor general before being confirmed, recused himself from 57 cases related to his work at that Justice Department, according to SCOTUSblog.

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