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Kagan’s Recusals

Yesterday, I raised the issue of Elena Kagan’s recusal in a case that might try to reverse or modify Citizens United. It seems the White House has already thought this through:

White House press secretary Robert Gibbs said Obama took the issue into consideration when he looked at Kagan for the nomination. “The president had to make a decision similar to past presidents that have tapped solicitor generals to serve on the high court,” Gibbs said. “Next year, I think we anticipate recusals in about a dozen cases, and then maybe less than half of that in the year after that.”

Really — how did they count? What standard are they using? Kagan should be very clear about what sorts of cases and what issues she believes she will be recused from. This is critical not only in determining her ethical posture but also in figuring out whether Democrats will be “down a vote” for some period of time. Is she going to opine on the constitutionality of ObamaCare? On Guantanomo cases? On this, the Senate should insist on clear and definitive answers. After all, it goes directly to her ability to perform the job for which she has been nominated.


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