Kagan Recusal: What Others Are Saying

by Carrie Severino

For those who are keeping track of the debate over Justice Kagan’s involvement in the Obamacare litigation, here is a collection of notable quotes and statements on the matter.

My Bench Memos colleague Ed Whelan, in an L.A. Times piece by James Oliphant:

“The DOJ documents that have been made public show that Kagan was personally involved in advising how to defend against challenges to” the healthcare law.

Lamar Smith, Chairman of the House Judiciary Committee, in a Washington Post op-ed:

The NFL wouldn’t allow a team to officiate its own game. If, as solicitor general, Kagan did advise administration officials on the constitutionality of the president’s health-care law, she should not officiate when the matter comes before the Supreme Court. The Obama administration has a responsibility to fully disclose any information about what role Kagan played in the review of the Affordable Care Act. The validity of the outcome at the high court depends on the impartiality of the justices.

Senator Sessions, Ranking Member of the Senate Judiciary Committee during Kagan’s confirmation, in a letter to Attorney General Eric Holder:

[E]mails that the Department of Justice was compelled to release in response to lawsuits under the Freedom of Information Act the day after your appearance before the Judiciary Committee and earlier this year seem to contradict your purported lack of cognizance of the House Judiciary Committee’s request and your assertion that at all times in this matter Solicitor General Kagan was excluded from discussions and/or deliberations regarding these matters. I am deeply disturbed by these developments and believe that the Justice Department should have provided these documents to the Senate Judiciary Committee during Justice Kagan’s confirmation hearing.

Senators McConnell, Kyl, Grassley and Lee, in a letter to Attorney General Eric Holder:

Among other involvement in this matter, it appears that she was privy to discussions of legal claims and litigation strategy concerning court challenges to the PPACA. And it is apparent that she herself enthusiastically supported this legislation as a member of the Administration which is now defending it. When a former member of the Administration is in a position to rule on litigation in which she apparently had some involvement and which concerns legislation she herself supports, public confidence in the administration of justice is undermined.

Washington Examiner editorial board:

Considering the vote buying in the Senate – remember the Cornhusker Kickback? – and the warping of House rules to gain Obamacare’s passage, it would be refreshing to see Kagan respect the law by recusing herself when the measure comes before the nation’s highest court.

Liberal law professor Jonathan Turley, on his blog

That effort [by the Obama administration to have "carefully separated Kagan from any discussions of the health care law"] may be successful, though it also increases the appearance of selecting someone in part to help guarantee a vote on the critical legislative measure for the Administration. Given the obvious effort by everyone to separate Kagan from these discussions, she may have avoided a conflict, but the involvement of her office still presents a serious appearance question.

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