Bench Memos

White House Counsel’s Office Alumni: Kagan Should Recuse

Up until today much of the mainstream media has been treating the ObamaCare recusal calls as a tit-for-tat argument: Liberals want Justice Thomas to recuse himself, while conservatives say Justice Kagan should recuse.  They split the difference and conclude that everyone might as well sit.

Apparently attorneys who have worked in the White House Counsel’s office disagree.

Politico reports today that unnamed former White House Counsel officials not only dismissed calls for Thomas’ recusal out of hand, but that they actually concluded Kagan ought to recuse from the case.  The reporter found mixed opinions about whether there was enough evidence to demand Kagan’s recusal, but none thought the issue was open and shut, and they suggested that, in cases of ambiguity, the best course would be for her to “bend over backward to avoid even the appearance of a conflict.” As Politico’s Tevi Troy concluded,

[Justice Kagan], and our nation, would be better served if she were to seek the views of outside counsel and take their recommendation on this important issue.

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