A Theory on Kagan's Recusal
December 12, 2011
RUSH: As usual in a story in the mainstream media, I had to check three different places to get the truth about something. Justice Elena Kagan of the US Supreme Court in the first story I read it said she recused herself from the decision to take the Arizona immigration case. The Supreme Court has decided they're gonna take the Arizona immigration case, and the story said that she recused herself from the decision to take it. That's all it says. Well, what about the actual case? Is she gonna recuse herself from that? Then somebody says, "Yeah, she's recused herself all the way." I can't find that. All I can find is she recused herself from the decision, then you found the LA Times: "Justice Elena Kagan, formerly Obama's solicitor general said she's sit out the case."
So that makes it sound like she's gonna recuse herself from the whole case, which frankly I have trouble believing. Liberals don't do this. If she's gonna recuse herself from the Arizona immigration case, how can she not recuse herself from the Obamacare case? And in this case, it takes it down to 4-4. I don't know how that's gonna play out on the Arizona case but on Obamacare the presumption is gonna be a 5-4 case either way. Anthony Kennedy is supposedly -- that's what everybody says -- a swing vote but nobody knows which way he's gonna go on Obamacare, same thing here, so if you take the ninth justice out, you're at 4-4. What do you do when you tie? So we'll see.
RUSH: Bruce, Muskegon, Michigan, welcome to the EIB Network.
CALLER: Good afternoon, Newt.
CALLER: Newt, I'm sorry, I was listening to you talk about Newt. Rush, honored to speak with you.
RUSH: Thank you, sir.
CALLER: I have a theory which I'd like you to comment on.
RUSH: I tell you, Newt's gonna lose a lot of Democrat voters with that pledge. He's gonna lose a lot of moderate independents, they love cheating, they don't want any values. Newt, I would have advised him not to take the pledge, but that's just me. What's up, Bruce?CALLER: I have a theory. Call me cynical, but I think Kagan has recused herself from the decision to take the -- I have a theory on why I believe Kagan has recused herself from the decision to take the immigration case. I think she's doing it because when Obamacare comes around she'll be in a position or she thinks she'll be in a position where she's gonna be able to say, "I'm honest, I have integrity, I have no conflict of interest," because she'll say, "if I did of course I would recuse myself just like I did on the immigration case."
RUSH: You might have a point there. I wouldn't put it past these sneaks. But this one she was actively involved in this immigration business as solicitor -- just as she was with health care, and e-mails are there to prove it. But this could be a way of saying, "I recuse myself when it's warranted, see, I did it. There's no call for it here in health care." By the way, I asked the question earlier and I know the answer, I just didn't answer it, what happens in a tie, Supreme Court decision, it's 4-4? The lower court decision stands, whatever it was. The last court decision in the chain stands if the Supreme Court ties on a 4-4 race.