Kagan’s Office Delays FOIA Response Because It Doesn't Know What the Meaning of ‘The

The office of Solicitor General Elena Kagan has delayed responding to a Freedom of Information Act (FOIA) request submitted by CNSNews.com that seeks records that might shed light on whether Kagan would need to recuse herself from certain cases if she is confirmed as a Supreme Court justice.

Under 28 U.S.C. § 455, a former government employee who becomes a Supreme Court justice is required to recuse himself or herself from any case he or she expressed an opinion about while in government service.

The law says: “(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. (b) He shall also disqualify himself in the following circumstances: … (3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.”

Given Kagan’s service as solicitor general, there could be a good number of cases she would need to recuse herself from if confirmed to the Supreme Court because she had “expressed an opinion concerning the merits of the particular case in controversy” while in office.


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