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Kagan and Recusal: The Story That Won’t Go Away



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Recently I wrote an editorial in Slate arguing that Elena Kagan should recuse herself in the upcoming challenge to President Obama’s health-care plan. Because I am a “self-avowed” liberal, the piece created a bit of a stir, as noted by the Wall Street Journal. Liberal blogger Ian Millhiser took me to task in a response published by Slate, in which he suggested that I had accused Kagan of perjury and “mischaracterized” the law of recusal. I have responded to those charges already and won’t carry on that specific conversation here.

Elena Kagan should, however, recuse herself based on the undisputed fact that her office, the Office of the Solicitor General, and her top deputy, Neil Katyal, were undeniably involved, from the beginning, in the Obama administration’s litigation strategy defending the Affordable Care Act (“ACA”). Publicly available e-mails show that on March 21, 2010, Katyal informed Kagan of a meeting to discuss the litigation, and said to her: “This is the first I’ve heard of this. I think you should go, no? I will, regardless, but feel like this is litigation of singular importance.”

This, and other evidence, demonstrates that the Office of the Solicitor General was involved in discussions about how to defend the ACA, and it is undisputed that Justice Kagan was the head of that Office. So here is a hypothetical that demonstrates that Kagan should recuse herself. This argument does not depend on 1) any charge that Kagan lied during her confirmation hearing, which I emphatically don’t believe she did, or 2) any finding that the law requires her recusal, though it might.

Imagine a controversial law (“The Affordable Bible and Torah Act”), passed during a Republican administration, that donates millions of Bibles and Torahs to religious schools. Imagine a national, front-page-news controversy over this law, with President Perry arguing for improving faith and values in our schools and the Left arguing for separation of church and state. And imagine that Ken Starr was the solicitor general at the time of the law’s enactment.

The day the law is passed, after a year of partisan wrangling, Starr writes to Bill Bennett, a special adviser to the administration, and says, “Bill, we have the votes, simply amazing!” That same day, Starr is notified of official DOJ meetings to discuss litigation strategy for defending the law and decides not to attend personally, but knows that both his deputy, John Yoo, and the solicitor general’s office generally will be helping at the meeting, and in the future, to make sure this law is upheld by the Court. And his office does help.

A few weeks later, Ken Starr is nominated to the Supreme Court by President Perry. Two years later, the Supreme Court hears the case immediately before the reelection of President Perry, who 1) publicly fought for and is identified with the bill, 2) appointed Starr to the Supreme Court, and 3) is defending the law against public and widespread political attacks by Nancy Pelosi, who is running against Perry and using the unconstitutionality of the law as a major argument against him. It is undisputed that the validity of the law will play a major role in the upcoming election.

First, there is no question that in this scenario, the Left would call for Starr’s recusal. Second, is there really a difference between Starr’s personal involvement and his office’s involvement? Third, not only would it not be a bad precedent for Starr to recuse, it would be a great precedent supporting the integrity of the Court. This is the risk a president runs when he appoints a political officer like the solicitor general or the attorney general to the Court.

Finally, and most important, the idea that Starr would have to recuse himself if he had actually attended meetings planning the strategy to defend the Affordable Bible and Torah Act (which would have made him a “counselor” under federal law requiring recusal), but he would not have to recuse himself if he intentionally stayed away from those meetings in direct anticipation of being named to the Court, is almost ludicrous. What purpose could that overly formalistic distinction possibly serve when talking about the head of a major governmental office whose very purpose it is to argue cases in the Supreme Court of the United States?

Elena Kagan should recuse herself immediately from hearing this case.

— Eric J. Segall is a professor of law at Georgia State University.



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