On Balkinization, law professor Marty Lederman contests my argument that Justice Kagan was obligated to recuse herself from NFIB v. Sebelius (the first Obamacare case). A quick reply:
1. On Lederman’s account of 28 U.S.C. § 455(b)(3), the question whether a government attorney has “participated as counsel [or] adviser … concerning [a] proceeding” can be answered only by looking to actions taken after the complaint in the proceeding was filed. He states, for example, that the emails I cite “do not offer any evidence that Kagan … provided any advice when proceedings challenging the ACA were eventually initiated in late March.”
This time-restricted reading of section 455(b)(3), on which all of Lederman’s other arguments depend, is untenable. If it were sound, Kagan, say, could have drafted a template summary-judgment motion to be used in all the Obamacare cases, and so long as she finished the drafting before the cases were filed, section 455(b)(3) wouldn’t be triggered. There is nothing in the preposition “concerning” that remotely compels such a nonsensical line. (Nor does the fact that section 455(d) defines “proceeding” to include all stages of litigation in any way suggest that pre-filing advice on a set of proceedings somehow doesn’t “concern[]” those proceedings.)
2. Lederman asserts that at some point Kagan, as solicitor general, “evidently … decided that she would recuse from the litigation challenging the ACA so that the Court would have a full complement of Justices to review any such case in the event she were nominated and confirmed.” (Emphasis added.)
For starters, recusal is the wrong concept: she had no conflict of interest as solicitor general that would have warranted a recusal.
Further, Kagan’s role as SG was to do her job, not to act to ensure that “the Court would have a full complement of Justices” (euphemism alert!) in the Obamacare litigation. Gee, what does it say that she would have such a concern with respect to that matter but not others? As I’ve explained before, the Obama administration’s (false) post hoc account that Kagan was “walled off from Day One” from DOJ’s defense of Obamacare, if it were true, would provide an independent basis for her duty to recuse from the Obamacare litigation.