Prof. James Sample Maintains Justices Kagan and Thomas Should Explain Decision to Not Recuse Themselves

James Sample, Associate Professor of Law

Kagan controversy good for the public, court watchers say

By Neil Munro
November 15, 2011
The Daily Caller


Partly because of this legal autonomy, Kagan should explain her decision to not recuse herself, said James Sample, a Hofstra University law professor who supports the health care law and has worked for Democratic politicians and causes.

If judges had to recuse themselves whenever they any connection to an issue, the “consequences would be that only the previously civically uninvolved, non-elites could rise to be Supreme Court justices,” said Sample, who has studied judges’ recusals, and does not believe Kagan should recuse herself from the case.

By explaining their decisions to not recuse themselves, the “transparency might take them down a notch, but also might serve their interests and the country’s interests in the long term,” he said, adding that “It would be a wonderful moment in civics.”

Thomas, who is being pressured to recuse himself by left-of-center groups, should also stay on the case and explain himself, Sample said.

The model is Justice Antonin Scalia, who issued a lengthy explanation of why he did not recuse himself from a 2004 case involving then-Vice President Dick Cheney, even though Scalia and Cheney had gone duck-hunting together, said Sample. 

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See also: “Herman Cain calls for Kagan Recusal in Obamacare court finale

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