Refuse to Recuse

Elena Kagan under spotlight for Obama admin work on NLRB
Elena Kagan / AP

Elena Kagan / AP


Critics of President Barack Obama’s recess appointments are calling on Supreme Court Justice Elena Kagan to recuse herself from a potential Supreme Court hearing on the matter.

The Workforce Fairness Institute (WFI), a nonprofit labor watchdog, raised the prospect of recusal, citing then-solicitor general Kagan’s defense of President Obama’s recess appointments in a previous case regarding the composition of the National Labor Relations Board.

The Supreme Court invalidated more than 600 NLRB decisions in the June 2010 case New Process Steel v. NLRB because the board had been issuing decisions with only two members. Kagan defended Obama’s approach to board composition and recess appointments in several briefs, writing in April 2010 that the court “would significantly burden the rights protected” by the National Labor Relations Act if it decided against the administration.

The D.C. Circuit Court of Appeals in January ruled in Noel Canning v. NLRB that Obama violated the Constitution when he appointed Richard Griffin and Sharon Block to the board without Senate confirmation while the upper legislative chamber was in pro forma session. Legal experts predict the case will end up in the Supreme Court.

The WFI, which filed amicus briefs in the case, pointed out that Kagan pledged to recuse herself from any case “in which I have signed any kind of brief” during her 2010 Senate confirmation hearings. The associate justice has recused herself on previous cases, including the 2011 challenge to Arizona’s strict immigration laws, because of her work as solicitor general.

Leslie W. Abramson, a legal ethics professor at the University of Louisville, said the WFI’s call falls short of existing legal precedent for recusal, pointing to the late-Chief Justice William Rehnquist’s refusal to step down from ruling on the constitutionality of a law he had praised in a Senate committee before joining the court.

“As Rehnquist wrote, nobody comes to the court tabula rasa,” Abramson said. “Something a sitting judge has done in a prior life being used to recuse the justice in pending case before the court is a high threshold [to clear].”

Glenn Taubman, an attorney with the National Right to Work Legal Foundation, which also filed an amicus brief in Noel Canning, said Kagan should examine carefully her previous recess appointment work in making her decision.

“It certainly sounds reasonable that she would have to consider recusal, given the active role she took on recess appointments in New Process Steel and her opinion on what constitutes a proper recess appointment,” he said.

Update 10:15 a.m. Wednesday: The story has been updated to reflect that the Workforce Fairness Institute–and not the Chamber of Commerce, which operates the Workforce Fairness Initiative—called for Kagan’s recusal. 

Bill McMorris   Email Bill | Full Bio | RSS
Bill McMorris is a staff writer for the Washington Free Beacon. He joins the Beacon from the Franklin Center for Government and Public Integrity, where he was managing editor of Old Dominion Watchdog. He was a 2010 Robert Novak Fellow with the Phillips Foundation, where he studied state pension shortfalls. His work has been featured on CNN, Fox News, The Economist, Colbert Report, and numerous print publications and radio stations. He is a 2008 Cornell University graduate and lives in Alexandria, Va with his wife Teresa and daughter Olivia. His Twitter handle is @FBillMcMorris. His email address is