More on Elena Kagan’s Recusal Realities

Yesterday, we took a look at Elena Kagan, currently on the shortlist of shortlisters to replace John Paul Stevens. One potential downside for Kagan, we suggested, is her current job. As solicitor general, history indicates that Kagan would have to recuse herself from any case she either argued or submitted a brief for, which some legal analysts have suggested could be as high as 70 percent of cases in her first year on the bench. We cited Thurgood Marshall, Kagan’s former boss and a former SG himself, who recused himself from 57 percent of cases in his first year, as a mold for what a Kagan appointment could look like.

But history, as if often does, dives deeper. While Marshall’s example may indeed be a mark against Kagan, plenty of others took the bench with seeming conflicts and ended up being rather decent, even historic, members of the court. Stanley Reed had a stellar record as solicitor general when he was appointed to the high court in 1938. In his first year he penned a major agricultural opinion for the court, where he sat for 19 years. Other would-be justices with former government jobs—William Rehnquist (assistant attorney general), Byron White (deputy attorney general), and John Marshall (secretary of state)—fit comfortably in their robes and are better documented in high-school history textbooks for their opinions from the bench than for their executive-branch meanderings.

Which is to say that while Kagan’s portfolio of declared positions could come back to bite her, they’re not quite a nail in her coffin—at least not unless another shoe drops. Nor is the deftly floated and quickly debunked rumor perpetuated by CBS this morning that Kagan is gay, even though she’s not. For now, if those are the biggest smudges on Kagan’s candidacy, it means she’s still very much in the running.

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