A Liberal Professor Argues for Kagan's Recusal
According to Jonathan Adler at the Volokh Conspiracy, Eric Segall, a self-described “liberal constitutional law professor” who believes the individual mandate is constitutional, argues in Slate that Justice Kagan should recuse herself in the individual mandate litigation.
Can Justice Kagan review the ACA without regard for the personal and professional past and the future of President Obama as well as her prior work in the administration? Can she look at the ambiguous and open-ended Commerce Clause precedents of the court and reach a legal answer with no awareness of the political implications for the president who so recently employed and appointed her? If the answer is yes, she is more robot than judge. If the answer is no, she should recuse herself. And the answer, ultimately, is what Americans will think, and a reasonable American would believe she has a stake in this litigation.
- Comment (16)
- · Quote
- · UnfollowFollow (3)
Comments :
Oct '10
Re: A Liberal Professor Argues for Kagan's Recusal
Thought by many experts to be extinct, this is rare and refreshing proof that objective Liberals are merely endangered.
Re: A Liberal Professor Argues for Kagan's Recusal
Indeed, they are the one species that actually is endangered by climate change.
Sep '10
Re: A Liberal Professor Argues for Kagan's Recusal
He has a lot of class. She, not so much.
Jun '10
Re: A Liberal Professor Argues for Kagan's Recusal
Adam: I'm a lawyer, but haven't done appellate work in years. So here's my question: does it really matter? If she recuses herself, and Kennedy goes with the liberal wing, isn't a 4-4 vote just as good as 5-4? In other words, doesn't it require a majority to invalidate all or part of a statute?
Nov '11
Re: A Liberal Professor Argues for Kagan's Recusal
If the he you are referring to is Segall, I would suggest that the way he ends the article,
would seem to indicate a certain lack of class.
Re: A Liberal Professor Argues for Kagan's Recusal
I may have missed this, Adam, but have you explained where you yourself stand on the recusal question?
Re: A Liberal Professor Argues for Kagan's Recusal
Peter, my guess is that Kagan's involvement in Obamacare crossed the line into recusal territory. The problem is that DOJ refuses to release the emails and other records that would tell us for sure. In the absence of such disclosures, we're left with the appearance of a conflict, which is reason enough to recuse.
Re: A Liberal Professor Argues for Kagan's Recusal
Tabula, in a tie vote the Court must affirm the lower court decision. Interesting scenario since some lower courts upheld Obama Care and some did not. But as a practical matter I think a tie vote would be a victory for the administration. Interested how others see it playing out. BTW, let's not give up on Kennedy. Unpredictable to be sure, but sometimes very sound.
Nov '11
Re: A Liberal Professor Argues for Kagan's Recusal
Did you see Lamar Smith asking Eric Holder about these emails in the most recent hearings? Priceless.
Mar '11
Re: A Liberal Professor Argues for Kagan's Recusal
Does he also think that Clarence Thomas should recuse himself because of his wife's political work? That's the standard meme on the left right now. I'd be interested to hear what he'd have to say about that.
Jul '11
Re: A Liberal Professor Argues for Kagan's Recusal
Regarding this question it really does not matter but I see this politicization of the SCOTUS reaching a new low.
Jul '11
Re: A Liberal Professor Argues for Kagan's Recusal
Mothership_Greg
Did you see Lamar Smith asking Eric Holder about these emails in the most recent hearings? Priceless. · Dec 11 at 11:54am
Eric Holder is perhaps the worst human being on the planet. How his next year unfolds will be fascinating in terms of power and evil winning or losing against truth and justice.
May '11
Re: A Liberal Professor Argues for Kagan's Recusal
DocJay- BHO hired Holder to be our Atty General. That makes him worse.
Re: A Liberal Professor Argues for Kagan's Recusal
Adam, if this has already been addressed, I apologize in advance. Do I understand her recusal to be a strictly voluntary action? That is to say, if she refuses to do so, is there a means of enforcement available or a measure of rebuke sufficient to persuade her? I'm thinking of any means that might be available to either Congress or even the Chief Justice. If this is strictly an "honor system," then I don't harbor high hopes at all.
Re: A Liberal Professor Argues for Kagan's Recusal
Dave, it is voluntary. There's no enforcement and a failure to recuse wouldn't justify impeachment.
Re: A Liberal Professor Argues for Kagan's Recusal
Then I fear the discussion is an academic exercise, unless it becomes a means to political leverage sometime in the future. There are days when I fear that 95% of the people in the legal profession give the remaining 5% a bad name, ...but my numbers may be off.