The Obama administration just can't win in the ConWeb.
We noted that during the Elena Kagan confirmation process CNSNews.com published an article fretting that Kagan might not recuse herself from cases involving health care ifshe made it to bench. CNS published other articles speculating about whether she would recuse herself from cases she was involved with while working as Obama's solicitor general.
Now Kagan's on the bench, the new Supreme Court session has begun, and what is the ConWeb worried about? That Kagan is recusing herself from too many cases!
From an Oct. 4 Newsmax article by David Patten:
U.S. Supreme Court Justice Elena Kagan has decided to step down from participating in nearly half of the 51 cases the court has agreed to review this term because of potential conflicts of interest.
The news that Kagan will bow out of an unexpectedly large number of cases sent attorneys and legal scholars scrambling as the first day of the court's new term began Monday. Observers are trying to determine how major case law could be affected by not having a ninth justice on the bench for as many of the 25 cases that the court has agreed to hear so far this year.
The court is expected to agree to hear another 25 to 35 cases this term, and it is possible that Kagan will recuse herself from some of those cases as well.
Jay Sekulow, the chief counsel of the American Center for Law and Justice who has argued several cases before the Supreme Court, tells Newsmax, "The ramifications of this recusal could be significant for a generation."
He added: "I think this is fraught with disaster, as far as getting definitive opinions out of the Supreme Court of the United States. I think it's going to make it very difficult."
Chicago attorney and Fox News contributor Tamara N. Holder says for one justice to generate so many recusals is extraordinary. "It's good that she's recusing herself if there's a real conflict," Holder tells Newsmax. "But this many seems like a bit much. How can anyone be that conflicted? Is she overly cautious to the point of insecurity or is this the right move so as to avoid scrutiny with the final decision?"
No matter what Obama or his administration or any of his appointees does, the ConWeb will complain about it -- even if it contradicts previous criticism.