Bench Memos

Recuse Me

As JCN has noted and several senators have highlighted, Elena Kagan’s answers thus far regarding recusal have left many open questions, including this important one: If confirmed, would she consider herself eligible to sit on the case in which 21 states are challenging Congress’s constitutional authority to require citizens to buy health care? It’s the kind of high-profile case that is usually discussed at top-level DOJ meetings (which the solicitor general regularly attends), even though it is still at the district court stage.

Last week Tuesday, the senators on the Judiciary Committee submitted additional questions asking Kagan to clarify her role in the litigation — important information, since, if she expressed opinions or gave advice about litigation strategy or legal arguments, federal law would require her recusal from the case at the Supreme Court. Once a justice is sitting on the court, recusal decisions become hers alone, and without knowing more facts about the situation, the public would be unable to judge whether Kagan was properly recusing herself or acting unethically.

Kagan finally responded yesterday afternoon, basically denying that she ever expressed any opinion whatsoever on any litigation or potential litigation coming out of the health-care bill. This is a truly amazing response from a Washington lawyer, particularly from one who stated at her confirmation hearings that her only real “passion” is the law. As op-eds and editorials were flying and talking heads were, well, talking, Elena Kagan was mute. She did admit being at “at least one meeting where the existence of the litigation was briefly mentioned” but no substantive discussion took place. Unfortunately, we are left with her interpretation of what constitutes “substantive” discussion.

The utter implausibility of the idea that she never discussed of any issues surrounding health care is mitigated only by the calculated way she has approached her career thus far. Not only did she manage to studiously avoid making any statements of opinion in her academic career up to this point, she began avoiding litigation that might eventually make it to the Court well before she was nominated. Although she claimed she carried on in her solicitor general’s duties as usual until she was actually nominated, she stopped attending the attorney general’s morning meetings in “early-to-mid April” and did not involve herself in any new litigation. Apparently she knew what the Los Angeles Times later confirmed: “Her mission is to help uphold the laws that Obama and Democrats are pushing through Congress.” Risking a recusal on Obamacare would have put her own nomination in jeopardy — why would the president appoint someone to uphold his agenda who couldn’t sit on one of its key cases?

Kagan waited six days after the senators’ relatively simple request, and within 24 hours of her committee vote (scheduled for this morning), to respond. The delay in her responses suggests that Kagan, the White House, and Senator Leahy are not taking this process seriously, and instead are cooperating to push her vote through as quickly as possible. This has been a repeated strategy of the current administration and Congress, with health care, the stimulus bills, and now a Supreme Court nominee. They neither want the votes hanging out long enough to allow detailed criticism nor do they want to be casting their votes within earshot of the November elections. Apparently the Democrats aren’t confident enough in their own choices to allow them to stand up to scrutiny from the constituents who elected them.

Carrie Severino — Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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