Opinion

Kagan recusal a pipe dream

Robert Laurie Freelance Writer
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From the moment of Obamacare’s passage, the political spectrum was well aware that the president’s signature legislation would be heading for a Supreme Court showdown. Within short order, everyone, from the lowliest pundit to the president himself, had acknowledged that the law’s ultimate fate would be decided by nine justices. So, it came as no surprise when, two weeks ago, the court announced that it would hear the case early next year.

Immediately, articles began appearing all over the Web, wondering if Obama-appointed Justice Elena Kagan should recuse herself from the proceedings. Authors pointed out her painfully obvious conflict of interest, stemming from the fact that she advised the administration of potential legal challenges facing the legislation in question. They also focused attention on the gleefully pro-Obamacare comments that she made upon hearing of the bill’s likely passage.

Federal law states that justices should recuse themselves from “any proceeding in which [their] impartiality might reasonably be questioned,” or from any hearing in which they already “expressed an opinion concerning the merits of the particular case in controversy.” Clearly, these two criteria have been met, and if she’s interested in following the laws she claims to uphold, Kagan has no choice but to recuse herself.

Calls for Kagan to step aside were predictable and justified. What was harder to foresee is the astonishing fact that some conservatives, in and out of politics, actually think there’s a chance she might do it.

If the last 50 years have taught us anything, it’s that progressives, like the ones currently inhabiting the White House, view the court system as an obstacle. Wielding the power to neuter their statist dreams, the judicial branch is the one thing they need to control if they have any hope of instituting their largely unconstitutional agenda. At every level of government, far-left politicians have spent decades doing everything in their power to fill the courts with the left-wing faithful — ideologues who will put progressive principles first and the Constitution a distant second.

Elena Kagan, precisely because of her previously stated support, represented the gold standard of judicial nominees. Her successful appointment to the bench was like winning the lottery for an administration bent on rebuilding America “from its foundations.” To suggest that she would, in her wildest dreams, even consider the idea of recusal is like suggesting that a team would turn down a Super Bowl win by alerting a ref to the fact that he’d forgotten to call a penalty. It simply isn’t going to happen.

With willing recusal nothing but a fantasy, some have begun asking if it might be forced upon her. The quick answer is no. Recusal, by definition, is a voluntary act. There is no legal way to force Kagan from the bench.

Still, the Supreme Court doesn’t exist in a vacuum. Last Friday, four senators, led by House Minority Leader Mitch McConnell, sent a letter to Attorney General Eric Holder. The message demanded more information regarding Kagan’s participation in the creation of the Obama administration’s legal defense against health care reform challenges. It was seen by many as the first step in applying pressure on the administration, in the hopes that it will, in turn, ask Kagan to recuse herself.

This is, sadly, another pipe dream.

Holder’s administration is mired in a gun-running scandal that is the direct result of at least one American murder, and according to some reports, over 200 deaths in Mexico. At the moment, 53 congressmen have called on Eric Holder to resign or be fired. Neither the attorney general, nor the president, has shown the slightest interest in satisfying such demands.

If the Obama administration isn’t willing to do the right thing and rid itself of Holder, when he has presided over policies leading to the deaths of hundreds of innocent civilians, why would anyone think it would put pressure on Kagan to step away from the bench?

For people like Obama, Holder, and Kagan, agenda is all that matters. They’ve proven that they’re not interested in doing something “because it’s the right thing to do.” They’re only interested in furthering the statist cause. To believe that Kagan would willingly remove herself from a position where she might protect Obamacare is to deny everything we’ve learned about the progressive mind.

Robert Laurie is a Michigan-based conservative columnist and freelance writer. He also runs a daily political commentary blog at RobertLaurie.net.