Recusal! FAUX News Fraudcasting Fail

Posted by AzBlueMeanie:

FAUX News Fraudcasting is not a legitimate news organization. At what point should FAUX News Fraudcasting lose its license for perpetrating a fraud on the public such as this:

From Media Matters on FAUX's ridiculous attacks on Supreme Court Justice Elena Kagan — Fox Cites Non-Existent Part Of The Constitution To Hype Argument For Kagan Recusal:

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.

The Constitution actually contains seven articles, none of which have more than 10 sections. It also has 27 amendments, none of which contain anywhere near 144 sections.

The language Fox quoted from actually comes from a statute passed by Congress, Title 28 of the U.S. Code, Section 455. But that's the very statute legal ethicists have analyzed in finding that Kagan does not need to recuse herself because of the email.

Given what the Rupertgate Scandal in Great Britain is exposing about how Rupert Murdoch's media empire operates, it is time to look with a critical eye at the outright frauds and lies that are the daily fare on FAUX News Fraudcasting. There is no First Amendment right to perpetrate fraud. It is a crime.

UPDATE: Dahlia Lithwick writes at Slate Should Elena Kagan recuse herself from the Obamacare case? Of course not. – Slate Magazine:

In the epic battle to manufacture false equivalence, score another point for critics of Justice Elena Kagan, who is now being called upon to recuse herself from next spring’s landmark Supreme Court case about the Affordable Care Act because she had (gasping, clutching heart) … a job.

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Fox News tried to double down on the pretend outrage over Kagan’s astonishment that a law had passed, but even they couldn’t find an ethics expert who agreed, nor could practically anyone else. The rationale for the call for recusal seems to be that Kagan, who did everything in her power to avoid creating a conflict of interest by delegating everything possible to her deputy Neal Katyal, has somehow shown a conflict of interest.

The fallback argument is that her enthusiasm for the legislation somehow represents an “opinion regarding the underlying legal or constitutional issues related to the health care legislation.” Which is a bit like saying that my enthusiasm for wheat toast reflects a constitutional view on Wickard v. Filburn. Take that, plus a healthy dollop of “we haven’t found anything but we’re still sure it’s there,” and you have the full measure of the new crop of biting recusal claims against her.

* * *

To be sure, Kagan would have to step aside if she had, while in government service, worked on strategies and tactics on health care. (That is precisely why she recused herself in so many cases on other issues, which amounted to more than one-quarter of the cases heard, last term.) In cases in which she was actively involved in setting policy and strategy Kagan stepped aside. In cases in which she went out of her way to be uninvolved, she hasn’t. But the suggestion here seems to be that Kagan is compromised not for the work she did, but for the office she held—and that is a standard that does not exist in the ethics rules.

If anything, the fact that then-Solicitor General Kagan went out of her way not to participate in the meetings and strategy sessions surrounding the health care litigation suggests that she fully understands that appearance of improper conduct in fact counts for as much as actual misconduct. She was at pains to distance herself from this case because it would have looked bad. For which her critics now seek to, er, make her look bad. The criticisms of Kagan aren’t about the appearance of bias or impropriety, because Kagan has been pretty much obsessive about preserving appearances. And what about those who believe that her caution as solicitor was all part of an elaborate plan to get her on the court so she could vote to uphold the law? This is also irrelevant. The ethics rules don’t exist to comfort the severely paranoid. There’s medication for that.

Well said.