Fox Cites Non-Existent Part Of The Constitution To Hype Argument For Kagan Recusal

[NNN0LHI]

http://mediamatters.org/blog/201111160010?frontpage

November 16, 2011 11:19 am ET by Adam Shah

For the second day in a row, Fox's "straight news" division has hyped the claim that U.S Supreme Court Justice Elena Kagan should recuse herself from the case involving the constitutionality of a provision of the Affordable Care Act. Fox pointed to an email Kagan sent to then-Justice Department adviser Laurence Tribe on the day the House of Representatives passed the Affordable Care Act in which Kagan said, "I hear they have the votes, Larry!! Simply amazing."

Legal ethicists have thrown cold water on the argument that Kagan needs to recuse herself over that email. But Fox seems to have an argument that the legal ethicists haven't thought of: Fox national correspondent Steve Centanni said Kagan's recusal may be required by "Article 28 of the Constitution." Fox's graphics department provided the relevant quote from the "U.S. Constitution, Article 28, Sec. 144":

Three glaring problems with this argument: The Constitution has no Article 28, has no Section 144, and does not contain the language quoted.

[Atman]

1. It's pretty obvious what they're doing; trying to pre-empt the Clarence Thomas CoI

Thomas' conflict of interest is very, very real, but Fox viewers are very, very uninformed, and most likely won't hear about it unless Fox tells them. Which they won't. So they'll get their viewers all worked up over Kagan as a smoke shield. Classic Fox.

[annabanana]

3. They're coming to the party a little late.

Usually they try the "false offense as defense" business before the glaring problems pop up.

It has been one of the RW's more effective ruses.. There's probably a name for it, like inoculation or something.. . Where they accuse the opposition of doing, or being about to do, something that THEY are obviously guilty of.

You would have thought they'd see this one coming a little sooner.

[Scuba]

5. Exactly. They'll claim Kagan has a worse conflict of interest...

...and that Clarence and Scalia are pure of heart.


Like everything else Fox "reports", it's pure bullshit.



“The heaviest restriction upon the freedom of public opinion is not the official censorship of a press, but the unofficial censorship by a press which exists not so much to express opinion as to manufacture it.”

Dorothy L. Sayers
1893-1957

British writer, essayist, playwright and translator.

[BlancheSplanchnik]

9. +1

nailed it.

[SpiralHawk]

2. Fox (R) just makes shit up all the time

following the darkside example of the Godless Red Commie 'news' organizations of yesteryear.

[Earth_First]

4. How long before the emails with "U.S. Constitution, Article 28, Sec. 144" begin showing up?

I cannot wait for this one!

[unblock]

6. they meant 28 usc 144. us code title 28 chapter 144.

title 28 is federal law regarding judicial procedings and chapter 144 deals with recusals.

they may have referred to it as the constitution to give it more weight, or just because they can't help but lie.


this doesn't mean they're right about kagan needing to recuse herself, whatever conflict or bias she may have seems tame, especially compared to cases scalia and thomas haven't recused themselves from.

[jberryhill]

8. Lol, they thought "U.S.C." meant "US Constitution" instead of "US Code"

But what chucklehead thinks the Constitution would have anything numbered that high?

[court jester]

7. It's 28 USC 455: US Code Sec 455: Disqualification of justice, judge, or magistrate judge

apparently the graphics dept goofed. Mistakes happen. But the last half of the article wasn't quoted.

Do you think Thomas should recuse himself?

The Law (it is not a suggestion, as I have been told by my attorneys when I have a legal dispute)

(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:

(1) Where he has a personal bias or prejudice concerning a
party, or personal knowledge of disputed evidentiary facts
concerning the proceeding;
(2) Where in private practice he served as lawyer in the matter
in controversy, or a lawyer with whom he previously practiced law
served during such association as a lawyer concerning the matter,
or the judge or such lawyer has been a material witness
concerning it;
(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;
(4) He knows that he, individually or as a fiduciary, or his
spouse or minor child residing in his household, has a financial
interest in the subject matter in controversy or in a party to
the proceeding, or any other interest that could be substantially
affected by the outcome of the proceeding;
(5) He or his spouse, or a person within the third degree of
relationship to either of them, or the spouse of such a person:

(i) Is a party to the proceeding, or an officer, director, or
trustee of a party;
(ii) Is acting as a lawyer in the proceeding;
(iii) Is known by the judge to have an interest that could be
substantially affected by the outcome of the proceeding;
(iv) Is to the judge's knowledge likely to be a material
witness in the proceeding.
(c) A judge should inform himself about his personal and
fiduciary financial interests, and make a reasonable effort to
inform himself about the personal financial interests of his spouse
and minor children residing in his household.
(d) For the purposes of this section the following words or
phrases shall have the meaning indicated:

(1) "proceeding" includes pretrial, trial, appellate review, or
other stages of litigation;

(2) the degree of relationship is calculated according to the
civil law system;

(3) "fiduciary" includes such relationships as executor,
administrator, trustee, and guardian;

(4) "financial interest" means ownership of a legal or
equitable interest, however small, or a relationship as director,
adviser, or other active participant in the affairs of a party,
except that:
(i) Ownership in a mutual or common investment fund that
holds securities is not a "financial interest" in such
securities unless the judge participates in the management of
the fund;
(ii) An office in an educational, religious, charitable,
fraternal, or civic organization is not a "financial interest"
in securities held by the organization;
(iii) The proprietary interest of a policyholder in a mutual
insurance company, of a depositor in a mutual savings
association, or a similar proprietary interest, is a "financial
interest" in the organization only if the outcome of the
proceeding could substantially affect the value of the
interest;
(iv) Ownership of government securities is a "financial
interest" in the issuer only if the outcome of the proceeding
could substantially affect the value of the securities.

(e) No justice, judge, or magistrate judge shall accept from the
parties to the proceeding a waiver of any ground for
disqualification enumerated in subsection (b). Where the ground for
disqualification arises only under subsection (a), waiver may be
accepted provided it is preceded by a full disclosure on the record
of the basis for disqualification.

(f) Notwithstanding the preceding provisions of this section, if
any justice, judge, magistrate judge, or bankruptcy judge to whom a
matter has been assigned would be disqualified, after substantial
judicial time has been devoted to the matter, because of the
appearance or discovery, after the matter was assigned to him or
her, that he or she individually or as a fiduciary, or his or her
spouse or minor child residing in his or her household, has a
financial interest in a party (other than an interest that could be
substantially affected by the outcome), disqualification is not
required if the justice, judge, magistrate judge, bankruptcy judge,
spouse or minor child, as the case may be, divests himself or
herself of the interest that provides the grounds for the
disqualification.
***
http://codes.lp.findlaw.com/uscode/28/I/21/455
***

Edit: Add Link

Do you want to grant a (R)epublican administration the right to force you to buy stuff? Really? Because that is what will happen if this insane twisting of the commerce clause is upheld. Maybe you will be forced to buy sun bonnets because skin cancer costs the newly empowered health insurance guardians too much money to treat skin cancer. Mitt Romney is going to fight that? LOL

Maybe there will never be another (R) admin. That's the ticket.