Liberal Law Prof: Kagan Should Recuse

by Ed Whelan

On Slate, law professor Eric Segall, who describes himself as “a liberal constitutional law professor for more than 20 years, and a loyal Democrat,” makes the case that Justice Kagan should recuse herself from the Obamacare case:

As many have pointed out, there are legitimate arguments that these rules [set forth in 28 U.S.C. § 455(b)(3)] point to recusal. Was Kagan a “counsel” or “adviser” on this issue? We know that she was on an e-mail exchange between her top deputy, Neal Katyal, and Associate Attorney General Tom Perrelli, about a meeting to discuss the litigation strategy for the ACA litigation, and lawyers in her office would be present. We also know she attended at least one meeting where the litigation was discussed. It is of course possible that she personally stayed out of those discussions. We don’t know how fully Kagan was involved because the White House (perhaps for legitimate reasons unrelated to this controversy) has not released all of the relevant emails about the matter. We might never know, but that lack of certainty points to recusal, because it raises serious doubts.

But, Segall continues, beyond these facts, there is “the perfect storm of events that should require Kagan’s recusal”:

1)  She served as the solicitor general of the United States during the time that the ACA was furiously debated in Congress, discussed in town halls across the country, and enacted;

2) The ACA is the most important, controversial, and partisan piece of legislation put forward by the Obama administration while Kagan worked as the president’s top lawyer to the Supreme Court. If he didn’t consult with her about it, he should have;

3) She was nominated to the Supreme Court by President Obama shortly after the ACA was passed, and the president is closely and personally identified with the law;

4) She has to review the law just a few months before President Obama runs for re-election;

5) His re-election might well be affected by how the Supreme Court rules; and

6) We know she celebrated the passage of the law.

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.

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