Bench Memos

Kagan Must Recuse Herself from Obamacare Case

As solicitor general of the United States, Justice Elena Kagan served as the head of an office responsible for formulating the Obama administration’s legal defense of its domestic agenda priority — Obamacare. It could be no surprise to President Obama who appointed her to the Supreme Court that any former solicitor general would have many conflicts for years to come. Now, the Court will soon hear a constitutional challenge to the health-care law. Despite mounting evidence of her substantial participation in the administration’s legal defense of that law, she still has not announced whether she will recuse herself from presiding over the case as a justice.

According to Section 455(b)(3) of Title 28 of the U.S. Code, justices must disqualify themselves in cases where they have “served in governmental employment and in such capacity participated as counsel, adviser, or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case or controversy.” In United States v. Gipson, the Tenth Circuit held that judges must recuse themselves if they have “previously taken a part, albeit small, in the investigation, preparation, or prosecution of a case.” Other courts have suggested that, merely by virtue of a lawyer’s position as the head of an office during the preparation of a case, he or she is disqualified to sit as a judge on that case. For example, several U.S. Circuit Courts of Appeal have held that U.S. attorneys who later become judges must recuse themselves from any proceeding that had been pending in any way in their offices, even if they were not substantively involved.

Previously undisclosed e-mails that the Justice Department has released pursuant to court order demonstrate Kagan’s direct involvement in the administration’s defense of the president’s health law from the very beginning. In January 2010, she assigned her chief and only political deputy, Neal Katyal, to the matter — the legal equivalent of a firm’s senior partner delegating work to a junior associate. That same month Katyal wrote in an e-mail to the associate attorney general’s office that “Elena would definitely like OSG [Office of Solicitor General] to be involved in this set of issues.” These actions alone constitute personal participation in the preparation of the case, and that is all §455(b)(3) requires to trigger mandatory recusal.

Kagan herself has admitted that she attended “at least one meeting” in which the case now before the Court was mentioned, but the e-mails show that she also was privy to discussions of the administration’s litigation strategy at least up until the announcement of her nomination on May 10, 2010. On March 18, Katyal e-mailed Deputy Attorney General Tom Perrelli and copied Kagan, discussing in detail and providing an Internet link to a draft complaint in potential litigation. He wrote: “For what it is worth, my advice (I haven’t discussed this with Elena, but am cc’ing her here) would be that we start assembling a response, [material redacted] so that we have it ready to go.” And at least one e-mail suggests that discussions of litigation strategy were deliberately not conducted in written form. On March 21, Katyal e-mailed Kagan to ask whether she would attend a key White House meeting on health-care litigation strategy. Kagan responded: “What’s your phone number?” These actions further support the need for her recusal.

It appears that Kagan and Katyal were cognizant of the recusal issue. On May 17, Katyal forwarded Kagan an e-mail he had just sent to Justice Department spokesperson Tracy Schmaler, in which he falsely asserted (as the previous e-mails show) that Kagan “has never been involved in any of it [health-care litigation]. I’ve run it for the Office, and have never discussed the issues with her one bit.” Ironically, Kagan responded minutes later to both Katyal and Schmaler: “This needs to be coordinated. Tracy, you should not say anything about this before talking to me.”

Some have attempted to manipulate this legal analysis by seeking to equate the facts surrounding Kagan’s prior involvement in the health-care case with an entirely different set of facts regarding Justice Thomas’ wife’s former employer, which took a position on the constitutionality of Obamacare after she left the organization. But those allegations bear no relationship to any legal standard for recusal, and are so specious that they have been rejected by scholars and legal commentators across the ideological spectrum. Justice Breyer summarily dismissed this as a “false issue.”

Recusal due to previous participation in a case is not an admission of wrongdoing, but rather an expected consequence when a government lawyer accedes to the bench. Indeed, Justice Thurgood Marshall — the last solicitor general to become a justice, and the justice for whom Kagan clerked — recused himself from 98 of the 171 cases decided by the Court in his first year, and most of them were cases in which the federal government was a party.

Justice Kagan has recognized that her involvement as solicitor general in the preparation of the government’s challenge to Arizona’s immigration law prohibits her involvement in that case as a judge — even though the lawsuit was not filed until two months after she ceased performing the duties of her office due to her nomination, and even though she testified that she was not asked to express an opinion on the Arizona law. In contrast, Justice Kagan’s involvement in the preparation of the government’s defense of the health-care law began at least as early as January 2010, four months before her nomination and two months before the bill became law. That she would not follow the same course in the health-care case is dubious. These facts require recusal.

— Senator Jeff Sessions is a senior member of the Judiciary Committee.  

NR Staff — Members of the National Review editorial and operational teams are included under the umbrella “NR Staff.”

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