Bench Memos

WaPo on Kagan Recusal in Obamacare Case

A house editorial in today’s Washington Post opines that neither Justice Thomas nor Justice Kagan should be recused from deciding the challenge to Obamacare. The editorial correctly concludes that Thomas’s situation “presents the easier call,” and it states that Kagan’s “situation presents a more delicate and difficult question.”

In deciding this “more delicate and difficult question” in favor of Kagan’s non-recusal, the editorial sets forth this proposition as its lead piece of evidence:

Justice Kagan and the Obama administration have said that she was “walled off” from health-care matters in early March 2010 after she was informed that the president wanted to consider her for an expected high-court vacancy.

The proposition that Kagan was in fact “‘walled off’ from health-care matters in early March 2010” is demonstrably false:

It was on March 18, 2010, that Kagan’s top deputy (who would surely have been the first to be informed if Kagan had in fact been “walled off,” as he would have stepped into her shoes) copied Kagan on his e-mail advice to Associate Attorney General Tom Perrelli that “we start assembling a response” to a draft complaint “so that we have it ready to go.” (See the e-mail at page 3 of this document.) Katyal stated in that e-mail, “I haven’t discussed this with Elena, but am cc’ing her here.” He of course wouldn’t have been “cc’ing her” (and thus both keeping her informed and inviting her to weigh in) if she had been “walled off” from the matter.

Likewise, on March 21, 2010, Katyal e-mailed Kagan with his advice that she should attend a DOJ meeting with the White House’s health-care policy team “to help us prepare for litigation.” (See page 5 of the link above; the quote is from the Perrelli e-mail that Katyal forwarded to Kagan.) Specifically, Katyal states, “I think you should go, no?” since this is “litigation of singular importance.” Again, his e-mail clearly contradicts the notion that Kagan had been “walled off” from the matter “in early March 2010.”

It is true that in a June 15, 2010, e-mail to Kagan, Katyal informs her, in connection with “a big story coming out shortly about whether you are recused in health care litigation,” that he has told Attorney General Holder that Kagan has “been walled off from Day One.” (See page 17 of the link above.) But, as both Kagan and Katyal had ample reason to know, what Katyal told Holder was not correct. That line instead appears to have been developed post hoc in order to salvage Kagan’s participation in the Obamacare litigation.

The Post usually has a keener sense for exposing a cover-up. What a shame that it instead relies on the cover-up in deciding the “more delicate and difficult question” of Kagan’s recusal.

Addendum (5 p.m.): I was working on addressing the op-ed in today’s Wall Street Journal by former Attorney General, and former federal judge, Michael B. Mukasey (a man for whom I have great respect), but I now see that Carrie Severino has beaten me to it. Judge Mukasey simply doesn’t acknowledge, much less confront, the evidence from the documentary record that underlies the case for Kagan’s recusal.

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