Would Kagan Have To Recuse Herself On Some LGBT Issues?

According to the Advocate, should Supreme Court nominee Elena Kagan be confirmed, she may have to recuse herself from several critical LGBT cases due to prior work on their issues she’s done as Solicitor General.

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.”

The above-linked piece concludes that a Kagan recusal from the DOMA case, for example, would likely leave the Court split at 4-4, upholding the law.