Althouse: "So far it appears that only Republicans and conservatives want Kagan to recuse herself from hearing the [Obamacare] case..."

December 8, 2011

"So far it appears that only Republicans and conservatives want Kagan to recuse herself from hearing the [Obamacare] case..."

"... while liberals and Democrats take the opposing view. I have been a liberal constitutional law professor for more than 20 years, and a loyal Democrat. I believe the Affordable Care Act is constitutional and that it would be truly unfortunate for the country (and the party) if the court strikes it down. I also recognize that there is a much greater chance of the court erroneously striking down the PPACA if Kagan recuses herself. That said, I believe that as a matter of both principle and law, Kagan should not hear the case."

Eric Segall in Slate.

26 comments:

Anonymous said...: This idea that judges can recuse themselves or not obviously needs fixing. I say anytime the issue comes up, a jury should be impaneled.; 12/8/11, 9:09 PM
Mark said...: Wow, an honest pundit. On the Left, no less. Will wonders never cease?

(Seriously, Segall is to be commended. He sets a good example for everyone.); 12/8/11, 9:22 PM
Beldar said...: I reject the equivalency that's been presumed (mostly by those on the Left) between calls for Kagan's recusal and for Thomas' recusal.

It's not like this doesn't come up. There is a very substantial body of caselaw on what is and what isn't grounds for recusal.

Anyone who's familiar with that body of law will quickly recognize that Kagan's situation raises, at a minimum, very serious questions. By contrast, the kinds of allegations leveled against Thomas and his wife are routinely dismissed as grounds for disqualification by state and federal courts on a literally daily basis.

As a practicing member of the bar, only months ago, Justice Kagan's client was the United States of America — at the exact time when the Executive to whom she reported (via only a single intermediary, the attorney general) was promoting and then signing this legislation into law. Now, that by itself isn't enough to get her disqualified, but it's enough that one has to ask some penetrating questions about the extent of her involvement in serving as a lawyer (not as an administration member) for the Obama Administration.

Justice Thomas hasn't been anyone's lawyer for decades, much less for one of the litigants in the case now before the Supreme Court.; 12/8/11, 9:28 PM
Mike_K said...: Obamacare is the absolutely worst way to try to reform healthcare. The French have a pretty good system that costs less than ours and allows more freedom than Medicare recipients have now. I hope we have another chance at it.; 12/8/11, 9:35 PM
Mark said...: Beldar, I suspect Segall threw in that last little innuendo about Thomas as a sop to his editors.

Segall wanted to get the damn thing published, didn't he?; 12/8/11, 9:45 PM
Firehand said...: Obamacare is a flat lousy system, but it gives the government almost complete control over our healthcare; they think that makes it good no matter the consequences; 12/8/11, 9:47 PM
edutcher said...: Kudos to Segall for integrity, but I don't doubt he'll pay a price for this.

The Left isn't big on forgiveness or braking ranks.; 12/8/11, 9:55 PM
Anonymous said...: The Left isn't big on forgiveness or braking ranks

But the left has nothing on the right for breaking ranks. Why, argue for Romney, or point out that Herman Cain is grossly unfit for the presidency at this juncture in his career, and you'll get a barrage of vitriol. You'll get accused of sock puppetry.

From certain quarters on the right. Isn't that so, Ed?; 12/8/11, 9:58 PM
SteveR said...: Yes, equating Thomas with Kagan for this case is not warranted. It will not matter, her vote for the act, would be the same for anyone Obama appointed.

That she should and would, implies something that we can safely assume does not exist.; 12/8/11, 10:00 PM
The Crack Emcee said...: Question:

If you've been "a liberal constitutional law professor for more than 20 years, and a loyal Democrat," then why are you always accepting the role of a conservative for Bloggingheads and other media appearances?; 12/8/11, 10:08 PM
Ann Althouse said...: Crack, check for quote marks in the post!; 12/8/11, 10:12 PM
Beldar said...: @ Mark (12/8/11 9:45 PM): Segall quotes one statute, 28 U.S.C. § 455, as if it's the only statute or code that matters. It's not. And both it and the other relevant statutes have long histories of interpreting court opinions that make them something other than a framework for water-cooler experts to interpret in the pages of Slate. And that's exactly the kind of shallow, half-assed, uninformed analysis he performs in assessing Kagan's position. That he concludes she ought to recuse herself, and that I would like to see Kagan's vote neutralized, doesn't blind me to the very poor quality of his analysis, which -- again -- ignores most of the relevant law.

Put it this way: If Seegal charged a paying client for this kind of legal work -- if he filed a brief in an actual lawsuit that ignored most of the relevant statutes and rules and all of the interpretative caselaw -- he'd be guilty of gross malpractice. It's shoddy.

And he (and Slate) are inviting others to do the same half-assed job assessing the ethics and legality of Justice Thomas.; 12/8/11, 10:13 PM
The Crack Emcee said...: Mike_K,

Obamacare is the absolutely worst way to try to reform healthcare. The French have a pretty good system that costs less than ours and allows more freedom than Medicare recipients have now.

40% of their citizens still use "no side effects" homeopathy, too - giving people water as medicine will certainly bring costs down, don't you think? Polio is still rampant there as well. I had a friend, now deceased, who was partially paralyzed and the biggest problem she faced was being repeatedly dropped on her head during hospital visits.

Is that the great system we should have? Or is it England's NHS where - oh never mind.

I don't know where you guys get your information from,...; 12/8/11, 10:14 PM
The Crack Emcee said...: Ann,

You're right - my bad.

Apologies.; 12/8/11, 10:17 PM
KCFleming said...: If Fast and Furious don't bother 'em, Kagan's non-recusal won't either.; 12/8/11, 10:51 PM
edutcher said...: Seven Machos said...

The Left isn't big on forgiveness or braking ranks

But the left has nothing on the right for breaking ranks. Why, argue for Romney, or point out that Herman Cain is grossly unfit for the presidency at this juncture in his career, and you'll get a barrage of vitriol. You'll get accused of sock puppetry.

From certain quarters on the right. Isn't that so, Ed?

No, that only comes from mobys like Seven/mccullough who seek to spread dissension and uncertainty through lies, disinformation, misinformation, and half truths.

Unless, of course, Seven has just admitted he's J also.; 12/8/11, 10:55 PM
William said...: I've read that Felix Frankfurter, behind the scenes, used to give FDR legal advice as to the best way to craft legislation, etc. He did this while serving on the Supreme Court. I'm not a lawyer. Can anyone here tell me whether his reputation was tarnished because of this?...If not, why not? If not, why not Kagan as well?; 12/8/11, 11:07 PM
Ralph L said...: Segall should know that serving as Solicitor General means never having to say you're sorry.; 12/8/11, 11:39 PM
Ralph L said...: This comment has been removed by the author.; 12/8/11, 11:39 PM
Mark said...: Beldar, point taken.

But even by that one statute, Thomas' position seems to me to be far less "compromised" than Kagan's, and I think any unbiased lay person would agree with me.; 12/9/11, 12:46 AM
Wally Kalbacken said...: It won't be a Love Story for him among the faculty.; 12/9/11, 12:57 AM
Groupdmt said...: Nice idea. THanks for sharing

prépresse; 12/9/11, 1:56 AM
Toad Trend said...: "She is poised to review the constitutionality of Obama’s health care statute, which, if invalidated, might do serious damage to his re-election campaign as well as the Democratic Party."

As if these are the most important considerations!!! Typical, typical, typical. Nothing in there about what it means to the average Joe. This thing has been positioned as the greatest thing since sliced bread by liberals, which, is enough to be afraid, very afraid.

And the people that have studied this horrible piece of legislation can confirm that there is enough in this 'act' to further complicate finance and health choice sufficiently enough to warrant repeal.

I think recusal is foregone. Precedent seems to be in place and it will be difficult to avoid.

Seems to me it is easy to make decisions like this when there is little on the line, as pointed out, but hard, when a liberal '10 commandments' of social change in the form of a 'health care' bill are on the line.; 12/9/11, 5:04 AM
The Drill SGT said...: Mark said...
Wow, an honest pundit. On the Left, no less

I'm not so impressed by his honesty or memory. he closes with this:

"Justice Kagan has a golden moment to display that at least one Supreme Court justice has integrity and character that exceed her party loyalty and political past."

Trying to single her out, but he forgets that he lauded Scalia several paras earlier for being even more golden :)

"A few years ago, Justice Scalia recused himself from a case challenging the constitutionality of the “under God” provision of the Pledge of Allegiance because he made a few for offhand comments about the case during a speech. Most liberals approved of Scalia’s decision at the time.... snip..
Scalia’s problem in the Pledge case was limited to what he said. Kagan’s problem with the ACA lies in what she did."; 12/9/11, 6:42 AM
Anonymous said...: Bravo Mr. Segall. A public statement against ideological interest in support of principle is impressive and too rare.; 12/9/11, 7:50 AM
Bender said...: The entire recusal issue (and Kagan should recuse, having been a formal advocate for the matter) is grounded upon the idea of respect for Supreme Court decisions.

The problem is that the Court long ago proved itself to be wholly illegitimate and unworthy of respect in far too many of its decisions. It long ago jettisoned law in favor of politics, policy, and subjective personal preference.

In the realm of the Constitution, Dred Scott and Roe have been the norm, not the exception. The arrogant call in Casey for the nation to rally behind the Court in the interest of national unity on abortion was laughable. Far from being a protector of civil liberties, too often the Court has been an oppressor.; 12/9/11, 10:28 AM