Category Archives: Eric Holder

Now that the Supreme Court has officially decided to hear the challenge to the constitutionality of the PPACA (Obamacare), the calls for Justice Elena Kagan to recuse herself from the case are flooding in. The issue is whether or not the Justice and former Obama administration Solicitor General through her previous duties, involvement, and expressed opinions, would be able to maintain the appearance of impartiality as required by federal statute. Predictably, these calls have come from pundits and politicians on the right. As noted in a previous post on DTN, Obama Attorney General Eric Holder does not see any reason for Kagan to recuse herself. I was unable to find any direct commentary on this from the president but his spokesman Jay Carney stated that this issue was examined and settled during the nomination process and any further calls to revisit the issue “sure sounds like a political thing”. Of course, Carney’s explanation makes no sense whatsoever, the senate confirmation process is an effort to determine whether or not that body should consent to the appointment of that individual to the court, not to excuse them from recusing themselves from any future case that court may hear. Also, as Fred Lucas of CNS news noted, we now have new evidence in the form of DOJ internal emails that strengthen the case for recusal.

Now a prominent and self-professed liberal and loyal Democrat constitutional professor of law is making the same argument. Eric Segall of Georgia State University College of Law recently made a non-political, fact based case for recusal. First, Segall explains the law as it pertains to judicial recusal;

A federal statute requires that any “justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Federal law also requires that a judge recuse herself if the judge previously served in governmental employment “and in that capacity participated as a … counsel, adviser, or material witness concerning the proceeding or has expressed an opinion concerning the merits of the particular case in controversy.”

He then goes on to make a brilliant matter of fact case for recusal.

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