December 8, 2011

ERIC SEGALL: A Liberal’s Lament on Kagan and Health Care. “So far it appears that only Republicans and conservatives want Kagan to recuse herself from hearing the 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. . . . I am not arguing that Supreme Court justices should recuse themselves any time they are called upon to hear a case involving a law supported by the president for whom they once worked. But this situation is far more complicated than that. This isn’t just about parsing the words of the recusal statute for plausible defenses; it’s about the appearance that a Supreme Court Justice with a conflict of interest is sitting on a major case. This is the perfect storm of events that should require Kagan’s recusal.”

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