Bench Memos

More on: What If Kagan Had Actually Been “Walled Off” from Obamacare Litigation?

With his usual charming obtuseness providing him mistaken cause for celebration, a Media Matters blogger contends that I have “accidentally undermined the case for having [Kagan] disqualified.” In fact, it’s his own arguments that undermine his contrary case.

Not quite grasping the point of my deliberately implausible hypothetical, MM won’t bring himself to answer it (gee, why not?), but instead maintains that “it would not be totally out of the realm of possibility for Obama to have said [to then-Solicitor General Kagan] that he wanted to make sure a justice he appointed could take part in such a case to avoid a 4-4 tie” and for that reason he wanted her walled off from the Obamacare litigation even before there was a Supreme Court vacancy.

The point of my hypothetical in question 1 was to explore whether there was any material difference between the imaginary statements made by Obama to Kagan and the actual messages that the walling off of her (however imperfect and however belated) necessarily conveyed to her. If you imagine that the message that she received from the walling off was that Obama didn’t care how she would vote but just wanted to make sure that the Court wasn’t divided 4-4, then you have the same grasp of reality as the MM blogger.

Noting Kagan’s written testimony (in question 12 here), the MM blogger states that “she began scaling down her participation in general Department of Justice matters on March 5, 2010,” when she was informed that Obama “wished to consider [her] for a possible Supreme Court vacancy.” What Kagan actually states is that she “scaled down” her participation in such matters during the period from March 5 to May 10 (the date of her nomination). So there is nothing in her statement that indicates (1) that she didn’t advise on DOJ’s anticipatory strategizing on health-care litigation prior to March 5 (such advice in that period would itself appear to require her recusal), or (2) when she actually was “walled off.” (Her own deputy obviously didn’t believe her to be walled off when he copied her on strategic advice on March 18, 2010. See page 3 here.)

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